In Molly Harvill v. Westward Communications, L.L.C. et al, Cause No. 04-40418 (5th Cir. December 13, 2005), the Court takes the issue squarely, acknowledges past confusion in the Circuit, and clarrifies that the rule in the Fifth Circuit is severe OR pervasive.
"The Supreme Court's decisions are controlling and we correctly stated the standard originally in Waltman v. International Paper, 875 F.2d 468, 477 (1989); therefore, subsequent incorrect statements of the test are not binding. See, e.g., H&D Tire & Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000) Contrary to being an irrelevant distinction, as Westward'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. The Supreme Court has stated that isolated incidents, if egregious, can alter the terms and conditions of employment. See Faragher, 524 U.S. at 788; see also Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) ("[W]e have often recognized that even one act of harassment will suffice [to create a hostile work environment]if it is egregious."); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (holding that a single incident of physically threatening and humiliating conduct can be sufficient to create a hostile work environment for a sexual harassment claim); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment for the purposes of Title VII liability."). By contrast, under a conjunctive standard, infrequent conduct, even if egregious, would not be actionable because it would not be "pervasive."
This case is an important clarification for those practicing in this Circuit as the misuse of the conjunctive standard by management-side attorneys and district court judges had become a frustration encountered all to often by employee-side attorneys.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer