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5th Circuit removes "burden" from sexual harassment plaintiffs

This just in from the 5th Circuit, courtesy of Mike Fox:

"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].)

Fox has a wry take on the decision. He writes, "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 ..."

Bravo, I say! Not that it's going to be easy to prove what is severe OR pervasive. Case en pointe, Fox notes that in this case of Harvill v. Westward, "winning that point was not sufficient to win the case however, as summary judgment was affirmed on other points."

Since it is company holiday party season, I thought I'd recommend this new find: A new site at has a menu page on sexual harassment with lots of helpful links and advice. No matter what side you're on -- watching the company's back or trying to pry someone's claws from your own -- you'll find some good introductory reality checks reading.

Posted by Product Team on December 14, 2005 at 02:46 PM | Permalink | Comments (0) | TrackBack (0)


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