Weird Request Presents Triable Issue

Weird Request for Personal Body Grooming Presents Triable Issue of Sexual Harassment

By Jerry L. Pigsley, Harding & Shultz, P.C., L.L.O.

The Eighth Circuit Court of Appeals recently found a St. Louis area public employee had established a triable sexual harassment claim. McMiller v. Metro, Case No. 123536 (8th Cir. Dec. 26, 2013). The court addressed the two types of sexual harassment claims alleged by McMiller: “hostile-work-environment” and “quid-pro-quo.”

Eartha McMiller sued the Bi-State Development Agency of the Missouri-Illinois Metropolitan District (“Metro”), her former employer, alleging that her supervisor had sexually harassed her in violation of Title VII. McMiller contended that her supervisor’s behavior resulted in a hostile work environment that amounted to constructive sex discrimination. She alleged that her supervisor kissed her face on two occasions, placed his arms around her or attempted to do so three times, and requested that she remove an ingrown hair from an area near his chin. The Eighth Circuit agreed with the trial court that the evidence presented in this summary judgment proceeding, “while demonstrating conduct that ‘can at best be described as inappropriate,’ is insufficient to establish severe or pervasive harassment under our precedents.” Accordingly, the Eighth Circuit affirmed the trial court’s grant of summary judgment for the employer on the hostile work environment claim.

However, the Eighth Circuit reversed the trial court’s grant of summary judgment for Metro on the “quid-pro-quo” harassment claim. McMiller claimed that her supervisor implicitly demanded sexual favors in exchange for influencing Metro to continue her employment, and that she was terminated because she refused to cooperate with her supervisor’s attempts to engage her sexually. The Eighth Circuit concluded that McMiller’s evidence was sufficient to generate a genuine issue of fact for trial on this theory. According to the appellate court, “[a] reasonable jury could conclude that [her supervisor] made a strange request for grooming assistance in an effort to bring McMiller into close physical proximity and to gratify him sexually in exchange for protecting her job.”

This decision provides guidance to municipalities on the boundaries of a hostile work environment claim under Eighth Circuit precedent, which is controlling in South Dakota. One of the judges on the three-judge appellate panel dissented, finding that there was a triable issue as to whether McMiller had been subjected to a hostile work environment. This decision also illustrates that a strange request from a supervisor to remove an ingrown facial hair may be found by a court to raise a sexual harassment claim under a “quid-pro-quo” theory. All of this may have been avoided if McMiller’s supervisor would have followed up on McMiller’s complaint to her that she “was being harassed” in her job.

Editor’s Note: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The author of this article, Jerry L. Pigsley, can be contacted at 402-434-3000, or at Harding & Shultz, P.C., L.L.O., P.O. Box 82028, Lincoln, NE 68501-2028, jpigsley@hslegalfirm.com. The Basic Economic Development Course (BEDC) will be held July 21-25, 2014 at the University of Minnesota Duluth Center for Economic Development in Duluth, Minnesota.

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