Post-Employment Acts Don’t Create a Hostile Work Environment

By Eric B. Meyer

When Krysten Overly, a financial advisor at a bank, told her male boss that she was resigning, Overly claims that he grabbed Overly’s arm to push her out the door. And as Overly left her boss’s office, he yelled, “Good riddance, bitch!”

What a jerk! But, as a matter of law, did he contribute to a sexually harassing hostile work environment?

Well, Overly certainly thought so.

After her resignation, she sued her employer claiming that her boss’s behavior, combined with some sporadic sexist comments he made before her resignation — he called her “cutie” five to 10 times — amounted to sexual harassment and created a hostile work environment for her.

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The Seventh U.S. Circuit Court of Appeals in Chicago disagreed. A hostile work environment requires, among other things, offensive behavior that is either severe or pervasive. The court determined that the few pre-resignation “cutie” comments spread over a few months were neither severe nor pervasive. And while the physical contact and post-resignation comments directed at Overly were completely inappropriate, the court said that they did not contribute to the hostile work environment:

By far the most disturbing evidence of gender bias comes after Overly had already resigned, but this cannot establish a hostile environment before her resignation. While it is unacceptable for a person to grab another in the workplace without permission, much less to refer to a woman as a “bitch,” [the boss’s] actions do not satisfy Overly’s burden to prove she suffered objectively severe and pervasive gender discrimination while working for [the Bank]. The fact that [her boss] acted wrongly after Overly resigned does not serve as evidence of a hostile work environment while working at [the Bank].

For the foregoing reasons, the court found in favor of the Bank. Although, assuming the truth of the allegations, I’d be surprised if the boss still has his job.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “Post-Employment Acts Don’t Create a Hostile Work Environment

  1. This could be different & interesting from a Canadian perspective. I am not a lawyer, however, grabbing the arm might be simple assault and the “bitch” comment a clear though single instance of harassment. In Canada, my bet is that the now former employee could have filed a complaint with a human rights commission with all sorts of potentially unpleasant consequences and costs for the business and the boss.

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