Jottings By An Employer's Lawyer

Sunday, August 24, 2003

If You Had These Workplace Comments, Wouldn't You Think Your Chances of Winning A Sexual Harassment Case Were Good?

In her suit against the City of Chicago Police Department, would be officer Kathy Durkin had the following evidence about comments made during her training:
From one of her shooting instructors, "I could teach a fucking monkey to shoot.” Later, after a satisfactory performance by Durkin, the instructor said, “look I taught a fucking monkey to shoot.” The same instructor referred to women as "broads", "fucking broads" and "cunts" in Durkin's presence. And after telling her she would never pass the test or make it as a police officer, he told her that her brain was too small and asked “who did you fuck to get that [college] degree?” When Durkin's husband, already a Chicago detective talked to the instructor, he was told “you have a real blonde on your hands.” And then asked him, “is she that stupid at home?” Soon thereafter he asked her if she “pulled out her witch bag.” After Durkin asked what he meant, the instructor explained “so I hear you told your husband that you’re not going to fuck him unless he came down here and talked to me.”
And others in the department were of the same ilk as the shooting instructor:
Driving with two classmates, one of them unzipped his pants, urinated, and said “suck this.” Another classmate told Durkin that he wanted to get her drunk and “fuck her and lick her all over.”
And yet the result, summary judgment against Durkin on her claims of sexual harassment, gender discrimination and retaliation was affirmed. Durkin v. City of Chicago (7th Cir. 8/22/03).

Given the nature of the testimony, give credit to the City's counsel for good lawyering. The opinion of the Court points out the importance of carefully analyzing each part of a case. Here, there was no tangible job action, since she had been provided more than adequate training. That removed strict liability for sexual harassment. There was no negligence on the part of the city since it was not aware of the conduct because Durkin failed to complain of sexual harassment through the individuals designated to receive complaints. Although she did complain, it was not about sexual harassment. (The only incident of the above mentioned was the 'witch' comment.) With respect to gender discrimination, she did not carry her burden of showing that there were similarly placed males who were treated differently. And her retaliation claim failed because her failure to complain, also meant there was no protected conduct.

Obviously, if summary judgment had not been obtained, this would have been a difficult case for defense counsel to try. But even bad fact cases, with good lawyering and a discerning court, can sometimes be made to go away.

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