Hostile workplace lawsuits contain such raunchy allegations that judges sometimes apologize for what they’re about to recount in their opinions.
Even so, in case after case, federal judges in Atlanta have dismissed the workers’ cases before trial, citing an extraordinary 1999 decision by the 11th Circuit Court of Appeals. In that case, the appeals court found that the behavior described by the plaintiff, a Florida woman, was not severe or pervasive enough to create an abusive working environment.
The woman, Red Mendoza, worked as an accounting clerk at Borden Inc. in Miami in the mid-1990s. These were among her allegations:
- Her boss constantly stalked her around the office;
- He rubbed his hip against hers while smiling at her as she stood next to the fax machine;
- He said, "I'm getting fired up," when she confronted him about his behavior;
- On a number of occasions, he looked her up and down, fixed his gaze on her groin and made sniffing sounds.
The 11th Circuit, ruling 7-4, found that such behavior was “hardly threatening or humiliating.” The court, which sets precedent for cases in Georgia, Alabama and Florida, threw out the case before a jury could consider it.
Mendoza appealed to the U.S. Supreme Court, but the justices declined to hear the case. She still can’t believe the 11th Circuit’s ruling.
“He looked right at my ‘whatever’ and sniffed,” said Mendoza, who still lives in Miami. “It was disgusting. How would any woman feel?”
Some people may think this was a made-up story to make money off the company, she said.
“It was not a story,” Mendoza said. “It was a nightmare. I had to quit because it was making me sick. Nobody has to be humiliated like that.”
The four dissenting judges predicted the ruling would keep legitimate sexual harassment claims from being heard by juries in the future.
“When we raise the bar as high as the majority does today,” Judge Gerald Tjoflat wrote, “it becomes more likely that we will miss the more subtle forms of sex discrimination that may still infest the workplace and make it more difficult for women, especially, to participate on terms of equality with their male counterparts.”
