Ingrown Hair Removal Request Enough to Keep Sexual Harassment Case Going, 8th Circuit Holds

Conduct does not have to be overtly sexual to form part of a charge of sexual harassment under Title VII of the 1964 Civil Rights Act if it puts the alleged victim in a position in which a supervisor can pressure an employee for sexual favors.

Especially, if the supervisor reminds the alleged victim that he holds the keys to her continued employment.

That’s the importance of a ruling last week by the U.S. Court of Appeals for the Eighth Circuit in a sexual harassment case brought by a female employee against her former employer, the Bi-State Development Agency of the Missouri- Illinois Metropolitan District (“Metro”).

Eartha McMiller alleged that her male supervisor created a hostile work environment by creating a workplace in which sexual conduct was severe and pervasive.

She also alleged that his behavior constituted “quid-pro-quo” harassment because it made her employment conditional on granting him sexual behaviors.

Specifically, she asserted that his request that she help him remove an ingrown facial hair from his chin put her in close physical proximity to him, giving him an opportunity gratify himself sexually at some point through her.

The appeals court ruled that she hadn’t established her hostile work environment claim, but she could pursue her  quid-pro-quo claim.

The court said that “a reasonable jury could conclude that Brown made a strange request for grooming assistance in an effort to bring McMiller into close physical proximity and to gratify himself sexually in exchange for protecting her job. During the encounter, after McMiller balked at removing the ingrown hair, Brown allegedly reminded McMiller that he could prevent her from being terminated, placed her in a locked position in which he kissed and touched McMiller, and assured McMiller that he would not let anything happen to her while she was on this job. Before that date, Brown already had kissed and touched or attempted unsuccessfully to touch McMiller and reacted angrily when rebuffed. ”

“A reasonable jury also could infer a causal relationship between McMiller’s refusal to indulge Brown and her termination,” the court ruled.

The case is McMiller v. Metro, No. 12-3536, 12/26/2013.

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