Employee Must Be Actually Offended In Order to Sustain Harassment Claim

A recent case reiterates the obvious but important principle that, in order to sustain a harassment claim, the complaining employee must show that they were, in fact, offended by the alleged harassment.

In Gibson v. Concrete Equipment Co., the U.S. Court of Appeals for the 8^th Circuit rejected a female employee’s claim of sexual harassment based on crude, sexually charged behavior from her male co-workers, including vulgar comments and an attempt to grab her breast. Notably, the employee had been warned about her use of sexual language with co-workers, and she had provided a letter and a picture she had drawn that contained profane language to two foremen.

In order to establish a claim of sexual harassment, the employee must be able to show, among other things, both that the conduct was objectively hostile and that she subjectively perceived it as abusive. The 8^th Circuit found the fact that the employee engaged in similar behavior to be evidence that she did not find such behavior unwelcome or offensive.