Employee Provided Sufficient Evidence That Sexually Harassing Behavior Was Unwelcome And Severe Or Pervasive

Marilyn Labra brought suit against her employer, alleging sexual harassment in violation of Kansas law. The trial court granted summary judgment for the employer. On appeal, the Kansas Court of Appeals reversed, holding that:

1. In determining whether the behavior in question is unwelcome for purposes of a sexual harassment claim, the question is whether under the totality of the circumstances the plaintiff indicated by his or her conduct that the alleged harassment was unwelcome. Moreover, the conduct must be unwelcome in the sense that the employee did not solicit or incite it and in the sense that the employee regarded the conduct as undesirable or offensive. Moreover, engaging in or responding to sexual banter does not necessarily waive a plaintiff's legal protections against unwelcome harassment.

2. Whether particular conduct was indeed unwelcome generally presents difficult problems of proof and turns largely on credibility determinations that should be made by the trier of fact.

3. Under the facts of this case, a jury could determine that the conduct was unwelcome under the totality of the circumstances.

4. Whether a work environment is sufficiently hostile or abusive to support an actionable claim for sexual harassment must be determined by looking at all the circumstances, including frequency of discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance.

5. Simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not suffice to prove an actionable claim for a hostile or abusive work environment.

6. The severity and pervasiveness evaluation in a sexual harassment action is particularly unsuited for summary judgment because it is quintessentially a question of fact.

7. Isolated incidents of conduct that may be offensive or boorish are not actionable as sexual harassment, but where the employee is the target of a persistent pattern of sexually provocative conduct that is intended to satisfy the supervisor's prurient desires in the workplace and beyond, such conduct is actionable in Kansas .

8. Under the facts of this case, the plaintiff's allegations, if believed by a jury, are sufficiently severe and pervasive to satisfy the baseline requirements for her claim of sexual harassment and hostile work environment.

Labra v. Mid-Plains Construction

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