Judge rules behavior not pervasive, severe enough to be harassment
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1002/nba.30845 |
SEPTEMBER 2020 NONPROFIT BUSINESS ADVISOR
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© 2020 Wiley Periodicals LLC • All rights reserved
DOI: 10.1002/nba
to the workplace. At this time, it is unclear when she
will be healthy and ready to return to work.”
The therapist supplied a second letter in January
2015 asking “whether or not the City of Quincy
has created safety for employees by implementing
comprehensive anti-harassment/abuse training and
response protocol.” The therapist also wrote, “Until
and unless such procedures are implemented and
enforced, I cannot recommend that [she] return to
work … regardless of accommodations.”
The city advised the therapist a few days later that
it had a “robust” protocol. It also inquired about the
plaintiff’s condition and any reasonable accommo-
dation requirements. However, the therapist never
responded.
About two months later, the plaintiff’s attorney
wrote to the city with a list of several questions,
including whether: (1) she could work in a different
building and (2) there had been any changes to the
sexual harassment policy.
The city replied: (1) the plaintiff was expected to
work in the same building as before, (2) it had the
same sexual harassment policy and (3) the plaintiff
must provide an estimated “return-to-work” date.
The lawyer replied on April 8 that it was impossible
to provide an estimated return date.
After the city red the plaintiff on April 9, she led
a suit that made several claims. One was a failure to
accommodate her disability by revising its sexual
harassment policy.
The trial court judge granted a summary judgment
in favor of the city.
On appeal, the court said there was a fundamental
difference between workplace accommodations and
workplace policies. It explained that an “accommo-
dation” was a workplace adaptation designed to pro-
duce equity between both disabled and nondisabled
persons that must be individualized to meet the needs
of a specic person.
In contrast, the court said “personnel policies”
must address the needs of all employees, including
those with adverse interests.
EMPLOYER WINS ➔ The appellate court ruled
that an accommodation couldn’t force a change to
a generally applicable policy when there were other
countervailing concerns.
It afrmed the summary judgment in favor of the
city.
[Koenig v. The City of Quincy, Washington Court
of Appeals, No. 36395-3-III, 03/19/2020].
Sexual harassment
Judge rules behavior not pervasive,
severe enough to be harassment
The plaintiff was a Social Security eld ofce
supervisor.
She led a suit in 2015 that claimed another super-
visor had sexually harassed her for years.
The plaintiff claimed several incidents had pur-
portedly occurred between September 2012 and
January 2015.
She alleged that in 2012, the accused (1) told her his
wife wanted an “open marriage,” (2) said the plaintiff
was the only woman he wanted to have his money,
(3) looked at her “inappropriately,” (4) often stared
at her and (5) once parked at the end of the employee
parking lot when she left work.
The accused’s alleged misdeeds in 2013 included:
(1) sitting in his car in the parking lot after leaving
the ofce, (2) parking his car a few feet from hers for
a few minutes before driving out of the lot and (3)
occupying his car in the parking lot when the plaintiff
left work.
She alleged that in 2014, the supervisor (1) was
still on the telephone at his desk past 5:30 p.m. on a
day she was scheduled to close the ofce, (2) made
negative remarks about technicians in her unit and
(3) unnecessarily sent her an instant message about
needing her time and attendance sheet.
The defendant filed a motion for summary
judgment.
The district court judge said the plaintiff was re-
quired to show conduct severe or pervasive enough
to create an environment that (1) a reasonable person
would nd hostile or abusive and (2) she had subjec-
tively regarded as abusive.
The judge said the alleged conduct consisted of
relatively infrequent and sporadic incidents over a
period of 30 months that didn’t involve any physical
touching or any explicit sexual comments.
She also ruled the only alleged remarks that could
possibly be characterized as sexual were the one about
an “open marriage” and the one about his desire that
the plaintiff have his money. However, she ruled those
were isolated incidents that weren’t severe or pervasive
enough to constitute a hostile environment.
The judge ruled that the allegations about staring
were irrelevant because there wasn’t any evidence
about either (1) why she found the stares offensive, or
(2) whether she had reported them to management.
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