days of the alleged discriminatory practice. See 42 U.S.C. § 2000e-5(e). The defendants argue that the last allegedly discriminatory act against Ms. Cline was on May 17, 1988, the day on which Ms. Cline took disability leave and the date which she listed in her EEOC charge as being the last occasion of discrimination. Since Ms. Cline filed her charge on March 31, 1989, or 318 days after May 17, 1988, the defendants submit that Ms. Cline filed her EEOC charge too late.
The court may not enter judgment in favor of the defendants on this ground. First, the defendants present no evidence to support their contention that Ms. Cline's employment ended on the day on which she took disability leave. The court may reasonably infer from her taking such a leave that she still remained within GECAL's employ. Second, Ms. Cline presents evidence that notwithstanding what she put in her EEOC charge, Mr. Burd's harassment continued while she was on leave. This harassment consisted of calling her up, asking for "Syphilis," and inquiring as to her health. These calls occurred well within Title VII's 300-day limit.
2. Type of Harassment
The defendants next argue that while they may be guilty of harassing Ms. Cline, they did so for reasons unrelated to her gender, and hence they did not violate Title VII. In suggesting to the court how it should treat their dispute on this issue, the parties rely on recent decisions involving "sexual harassment," which the EEOC has defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. See 29 C.F.R. § 1604.11(a) (1989). Controversies involving sexual harassment have received unique treatment from the courts. In the usual gender discrimination case under Title VII, the primary inquiry is whether the plaintiff's employer disadvantaged her on the basis of her gender. The courts answer this question through the scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and its progeny. See, for example, Box v. A & P Tea Co., 772 F.2d 1372, 1376-78 & n. 3 (7th Cir. 1985).
Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of gender discrimination under Title VII by showing (1) she was a woman, (2) she was qualified to receive a job or certain compensation, terms, conditions, or privileges of employment, and applied for them, (3) her employer refused to grant her the sought-after job, compensation, term, condition, or privilege, and (4) a male employee with similar qualifications received the job, compensation, term, condition, or privilege.
Sexual harassment cases differ because the discriminatory nature of the charged conduct speaks for itself. The main issue in sexual harassment cases is not whether the employer harassed the employee on the basis of her gender, but whether the claimed harassment affected the terms, conditions, or privileges of the plaintiff's employment, as Title VII uses those words. See 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986); Scott v. Sears, Roebuck & Co., 798 F.2d 210, 213-14 (7th Cir. 1986); Brooms v. Regal Tube Co., 881 F.2d 412, 418-19 (7th Cir. 1989); Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir. 1989); King v. Board of Regents of Univ. of Wis. System, 898 F.2d 533, 537 (7th Cir. 1990).
In cases involving the extension of a benefit in return for sexual favors ("quid pro quo" harassment), the effect on the plaintiff's job is clear and is seldom discussed. The tougher problems arise with so-called "hostile environment" harassment, the law being that only when the work environment becomes hostile does that environment become a "condition" of employment.
Implied within the analyses of hostile environment sexual harassment, however, is a requirement that the harassment be "sexual" in nature. See Scott, 798 F.2d at 211 (allegations of sexual propositioning, sexually suggestive remarks, slapping of plaintiff's buttocks); Brooms, 881 F.2d at 416-17 & n. 1 (sexual propositions, advances, commentary, and pornography); Swanson, 882 F.2d at 1237 (allegations of sexually suggestive remarks); King, 898 F.2d at 534-35 (sexual innuendos, advances, and assaults). If the harassment is unrelated to sexual activity, the question of discriminatory intent reappears -- and with it, the need for either direct proof of discrimination or an inference of discrimination resulting from the McDonnell Douglas analysis. See Volk v. Coler, 845 F.2d 1422, 1437 (7th Cir. 1988) (suggesting that the McDonnell Douglas framework may be useful in sexual harassment cases).
a. " Sexual" Harassment
This case presents allegations both of sexual harassment, as the EEOC has defined that term, as well as harassment on the basis of gender. The allegations of the former activity are minimal. The only harassment of a sexual nature is found in Mr. Burd's remarks about Ms. Cline's relationship with her husband, remarks which came according to Ms. Cline "now and then." These remarks by themselves would not unreasonably interfere with the work performance of the average employee in Ms. Cline's position, coming as infrequently as they did. See Scott, 798 F.2d at 214 (infrequent offensive comments by co-workers not debilitating enough to demonstrate hostile environment); King, 898 F.2d at 537 (strength of claim of hostile environment depends on the number of incidents and the intensity of each incident).
Mr. Burd's other remarks and actions, while offensive, were not sexual. His calling Ms. Cline "Syphilis" was a cruel play on her name, but Ms. Cline admitted in her deposition that she did not consider Mr. Burd's joking to imply that she had a venereal disease. Ms. Cline has put forth no evidence that Mr. Burd's one direction to her to take her seat contained anything other than a slang reference to the part of every human body, male or female, which occupies a chair. Similarly, Ms. Cline has not put forth evidence that Mr. Burd's timing of her bathroom breaks was sexual in nature.
b. " Gender" Harassment
If the harassment was not "sexual" as that term has been defined here, and this court holds that it was not, then Ms. Cline could still prevail on Count 2 if she were able to show that she was harassed because of her gender. As stated briefly above, harassment unrelated to sexual activity may nonetheless be actionable under Title VII's proscription against discrimination on the basis of sex, so long as the plaintiff is able to prove discriminatory intent. Of course here Ms. Cline is simply defending a motion for summary judgment. Thus, she need not prove her case, but rather, demonstrate that she has one.
In Volk, the court stated that "an alleged victim of sexual harassment may also proceed under Title VII by employing the indirect method of proof including shifting burdens of production." 845 F.2d at 1437, citing McDonnell. Thus, if Ms. Cline were able to show that while the harassment to which she was subjected was not sexual in nature, it occurred because of her sex, and that it affected the terms and conditions of her employment, she would have an action under Title VII.
Accordingly, this court turns first to the McDonnell Douglas analysis. Under that framework, the plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff carries her burden, the employer must then "articulate some legitimate, nondiscriminatory reason" for the discriminatory action. Should the employer carry its burden, then the plaintiff may still prevail by proving, again by a preponderance of the evidence, that the reasons offered by the employer were merely a pretext for discrimination. McDonnell, 411 U.S. at 802-04. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
In a case of "gender" harassment, as this court has postulated may exist here, the prima facie case of discrimination would consist of proof that 1) Ms. Cline is a member of a group protected under Title VII; 2) that she was harassed by her employer; 3) that the harassment was sufficiently severe or pervasive to alter the conditions of her employment; and 4) that male employees were not subjected to similar treatment. See Meritor, 477 U.S. at 67. Ms. Cline has obviously met the first requirement. As to the second and third, the question is whether she has offered evidence sufficient to demonstrate she was harassed severely enough to effect the conditions of her employment, and that the men with whom she worked were not similarly harassed.
Ms. Cline has alleged (and offered evidence to support her allegations) that Mr. Burd regularly yelled at her, called her insulting names, timed her bathroom breaks, made a variety of rude and boorish comments to her and asked her offensive questions. These allegations are sufficient to meet the Brooms v. Regal Tube standard for a "hostile working environment." That is, Mr. Burd's conduct would "adversely affect the work performance and the well-being of both a reasonable person and the . . . plaintiff. . . ." 881 F.2d at 419. And, as discussed below, Ms. Cline has offered evidence that it did in fact affect both her work performance and her well-being.
The question, therefore, is whether Ms. Cline has shown that the harsh treatment she received was qualitatively different from the treatment received by the men in her department. In her response to the GECAL's statement of material facts not in issue, Ms. Cline repeatedly refers to Mr. Burd's treatment of subordinates rather than his treatment of women, or herself as opposed to men. But in her deposition she stated that: "[Mr. Burd] yelled mostly at the older women. The younger women he did not yell as much, and he never yelled at the men that I could remember."
Ms. Cline has also offered evidence of several other women who were mistreated by Mr. Burd (see note 3 above). This is sufficient to establish her prima facie case.
GECAL has not offered evidence of a legitimate, non-discriminatory reason for Mr. Burd's behavior.
Thus, Ms. Cline's prima facie case is unrebutted. This court therefore will not grant summary judgment on count 2.
Two questions remain. The first is whether GECAL is liable for Mr. Burd's alleged behavior. An employer is not strictly liable for the sexual harassment of one employee by another. Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990). Rather:
the employer, provided it has used due care in hiring the offending employee in the first place, is liable for that employee's torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action. The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring.