Jottings By An Employer's Lawyer

Wednesday, December 14, 2005

5th Circuit Makes it Clear - It is Severe OR Pervasive

Clearing up a question that existed primarily in the hopes of management side employment lawyers practicing in the 5th Circuit, the Court yesterday acknowledges that it has sent mixed messages about the correct standard to judge whether sexual harassment is actionable-- is it "severe and pervasive" or is it "severe or pervasive." Noting that Supreme Court decisions are controlling, the Circuit aligns itself squarely with the "severe OR pervasive" standard:
Contrary to being an irrelevant distinction, as [employer's] counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law.
Harvill v. Westward Communications,LLC (5th Cir. 12/13/05) [pdf].

Winning that point was not sufficient to win the case however, as summary judgment was affirmed on other points.

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