conduct altered the conditions of her employment or was sufficiently severe and pervasive to create a hostile working environment.
III. Harassment Prompted By Gender
Many courts have required that the alleged harassment take the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. See Jones, 793 F.2d at 719-20; Henson, 682 F.2d at 903-05. Some courts, however, have held that the alleged conduct need not be sexual. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3rd Cir. 1990); Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988). In stating the essential elements of a Title VII sexual harassment claim, the Second Circuit has stated that a "complaining employee is required to prove . . . that the conduct was prompted simply because of the employee's gender." Carrero, 890 F.2d at 578; see Fair, 742 F. Supp. at 156. Thus, the conduct underlying a sexual harassment claim need not be sexual in nature as long as the conduct is directed at the employee because of his or her sex. Adopting such a standard recognizes that "intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances." Hall, 842 F.2d at 1014. Further, such a standard is consistent with Title VII's purpose of affording "employees the right to work in an environment free from discriminatory intimidation, ridicule and insult." Vinson, 477 U.S. at 65; see, e.g., Andrews, 895 F.2d at 1485 ("the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees may serve as evidence of a hostile environment").
Of the incidents that occurred in this case, some of the conduct was sexual in nature, while other conduct was not. The woman on the motorcycle, the slide of a woman's silhouette, the strippers, the suggestive gifts, and a male Mobil employee kissing and biting a female employee were incidents of a sexual nature. In addition, the comments made to Ms. Trotta by two male employees about the slide of her shown at the Atlantic City outing were sexual in nature. The incident at the softball game in 1985, where male employees got a female employee drunk, was not sexual. It was, however, directed at the female employee because of her sex.
The slides of Ms. Trotta returning from the scavenger hunt and of the male employee falling from a canoe were not taken or displayed because of gender. The slides were taken and displayed to capture the the spirit and share the events of company outings. While both Ms. Trotta and the male employee may have been embarrassed by the slides, neither of them was singled out because of their gender.
IV. Affected a Term, Condition or Privilege of Employment
To affect a term, condition or privilege of employment, the conduct must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Vinson, 477 U.S. at 67 (1986); Ellison v. Brady, 924 F.2d 872, 876 (9th Cir. 1991). "The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison 924 F.2d at 878; see King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990) ("Although a single act can be enough . . . generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident"). Therefore, a showing of pervasiveness lessens the required showing of severity, and conversely, a showing of severity lessens the required showing of pervasiveness.
To be deemed "pervasive," the conduct complained of must be "continuous and concerted," and not merely episodic. Carrero, 890 F.2d at 577; see, e.g., Kotcher, No. 91-7284, slip. op. at 1870 ("The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief"); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) ("A hostile working environment is shown when the incidents of harassment occur either in concert or with a regularity that can be reasonably be termed pervasive"). "The offensiveness of the individual actions complained of is also a factor to be considered in determining whether actions are pervasive." Carrero, 890 F.2d at 578. Whether the conduct in question violates Title VII is to be determined from the totality of the circumstances. Vinson, 477 U.S. at 69; see Carrero, 890 F.2d at 577; Danna, 752 F. Supp. at 610. The conduct must be viewed from the standard of a reasonable person. Danna, 752 F. Supp. at 609-610; Bennet, 705 F. Supp. at 984.
As well as affecting the reasonable person, the plaintiff must be adversely affected by the allegedly offensive conduct. See King, 898 F.2d at 537 (the court must conclude that the conduct would adversely affect both a reasonable person and the particular plaintiff bringing the action); Andrews, 895 F.2d at 1482 (same). "The subjective factor is crucial because it demonstrates that the alleged conduct injured this particular plaintiff giving her a claim for judicial relief. The objective factor, however, is the more critical for it is here that the finder of fact must actually determine whether the work environment is sexually hostile." Andrews, 895 F.2d at. 1483.
Ms. Trotta has failed to show that the conditions of her employment were altered or that she was subjected to a hostile work environment. While Ms. Trotta's employment situation changed at Mobil, this change did not stem from a hostile environment, but from Mobil's corporate reorganization. Ms. Trotta consternation with Mobil stems from limited opportunities for promotion open to her because of her refusal to relocate, not from the alleged sexually hostile environment. While Ms. Trotta found several incidents that occurred during the seven and one-half years at Mobil offensive, she has failed to show that these incidents altered the conditions of her employment.
Ms. Trotta has also failed to show that the incidents were sufficiently severe or pervasive to create a hostile work environment. Few of the incidents were directed at Ms. Trotta. The incidents spanned a period of seven and one-half years and were often separated by approximately a year. In addition, Ms. Trotta testified that her supervisors or Employee Relations addressed her complaints when she raised them. A reasonable person in Ms. Trotta's position would not have felt that there was a sexually hostile environment at Mobil. It is worth noting that having strippers at company-sponsored social functions and showing slides of a woman's silhouette at a company meeting are wholly inappropriate and contribute to creating a sexually hostile work environment. In this case, however, the allegedly offensive conduct is neither sufficiently severe or pervasive to constitute a sexually hostile work environment for purposes of Title VII.
V. Respondeat Superior
In determining whether an employer is liable for a sexually hostile work environment, courts "look to agency principles for guidance." Vinson, 477 U.S. 57, 72, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). In explaining these principles, the Second Circuit has stated that a "plaintiff must prove that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Kotcher, No. 91-7284, slip. op. at 1865, 1871 (citing Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986)). "Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known." EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir. 1989); see Andrews, 895 F.2d at 1486; Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989). The EEOC guidelines provide that an employer's remedy should be "immediate and appropriate." 29 C.F.R. § 1604.11(d). Moreover, an employer's remedy must be real, and not a "sham." See Kotcher, No. 91-7284 slip op. at 1874.
Mobil provided a forum to address complaints of sexual harassment and it took steps to prevent and remedy incidents of sexual harassment. Mobil promulgated its sexual harassment policy in a management guide effective April 1, 1981. The guide defined sexual harassment, charged managers with the responsibility to communicate Mobil's refusal to tolerate sexual harassment, established complaint procedures, insulated employees from retaliation if they complained of sexual harassment, and vowed to take appropriate disciplinary action in cases of policy violations. In addition, Mobil conducted seminars on sexual harassment for its employees. Ms. Trotta was aware of Mobil's policy on sexual harassment and availed herself of its remedial provisions. when Ms. Trotta made complaints to her supervisors or Employee Relations, they responded and took effective remedial actions.
Plaintiff has failed to establish that she was subjected to a sexually hostile work environment or that the terms of her employment were altered in violation of Title VII. Plaintiff's claims are therefore dismissed in their entirety and judgment is to be entered in favor of defendant.
DATED: April 8, 1992
New York, New York
David N. Edelstein
[SEE EXHIBIT A IN ORIGINAL]
[SEE EXHIBIT B IN ORIGINAL]