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issues,
not work issues. The meeting ended by the EEO officer telling O'Rourke
to come up with solutions on how to handle the matter. The treatment of
O'Rourke continued in the same manner. By late 1994, O'Rourke felt she
was no longer able to function as a fire fighter and left work on injured-on-duty
status. She began to see a psychiatrist. In mid-1995, frustrated at the
department's lack of action on her complaints, O'Rourke filed a discrimination
claim. A jury trial resulted in a finding of sexual harassment and a verdict
of $275,000 to O'Rourke. The trial judge decided that he had made some
errors of law and ordered a retrial. On retrial the jury awarded O'Rourke
$200,000. Both parties appeal.
HELD: Federal law prohibits a court from considering sex discrimination
claims that occurred more than 300 days prior to the filing of the claim.
O'Rourke contends, however, that her case fits within an exception to the
300-day rule. That exception permits courts to consider discrimination
allegations if they are a part of a continuing violation. In this case
O'Rourke argues that she has been the victim of sex discrimination under
the hostile work environment theory. To prevail on this claim she must
show that she is a member of a protected class, that she was subjected
to unwelcome sexual harassment, that the harassment was based on sex, that
the harassment was sufficiently severe or pervasive so as to alter her
conditions of employment and create an abusive work environment, that the
sexually objectionable conduct was offensive such that the reasonable person
would find it hostile or abusive, and that there is some basis for employer
liability. It is undisputed that O'Rourke is a member of a protected class
and that she considered the fire fighters' conduct unwelcome. There is
also compelling evidence that she suffered harassment based on sex. The
question remains, however, whether the harassment was sufficiently pervasive
to create an abusive work environment and whether the average reasonable
person would find the conduct offensive. There is evidence in the record
that would support the jury finding that the |
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conduct created an
abusive work environment and was sexually objectionable. Likewise, the
court could permit evidence outside the 300-day window. The evidence reflects
that once she became aware of the discrimination she brought it to the
attention of the city's EEO officer who did nothing. She then turned to
her supervisor who did nothing. She likewise turned to the fire chiefs
who did nothing. She was left with no recourse but to file a federal complaint,
which she did promptly. A reasonable jury could easily find this case fits
within the continuing violation doctrine. Additionally, there is no merit
to the city's argument that it was entitled to a jury instruction that
the fire fighters' conduct should be evaluated in the context of a blue-collar
environment. Prior case law holds that women who choose to work in a male-dominated
trade do not relinquish their right to be free from sexual harassment.
In fact, such reasoning would be illogical because it would mean that the
more hostile the environment, the more prevalent the sexism, the more difficult
it would be to prove that the sex-based conduct was sufficiently pervasive
to constitute a hostile work environment. Women working in trades do not
deserve less protection from the law than women working in a courthouse,
for example. The court also rejects the city's contention that the fire
fighters reading of pornography in the public spaces of the fire station
is protected by the First Amendment. In this case, O'Rourke was surrounded
by pornographic magazines, sexually explicit movies, and nude photographic
displays. Indeed, the city had a formal sexual harassment policy that prohibited
the keeping of pornographic materials at the fire station. The fire fighters'
First Amendment rights are not an issue in this case. Original judgment
reinstated. [O'Rourke v. City of Providence, Rhode Island, 235 F.3d 713
(1st Cir. 2001)] |
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