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 8th 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 8th Circuit found the fact that the employee engaged in similar behavior to be evidence that she did not find such behavior unwelcome or offensive.