âThe #MeToo and Timeâs Up movements constitute a revolution in womenâs rights that is too powerful to be turned back,â said Roberta Kaplan, co-founder of the Timeâs Up Legal Defense Fund, in October 2018. But a recent Seventh Circuit decision (Swyear v. Fare Foods Corp.) dismissing an employeeâs sexual harassment claim could jeopardize the momentum of the revolution.
On June 18, 2015, Fare Foods interviewed Amy Swyear for an outside sales representative position. During the interview, a hiring manager remarked that most of the other outside sales reps were men. He questioned Swyear about her ability to perform in a male-dominated field. The managerâs comments only hinted at what Fare Foods had in store for Swyear.
At the office, Swyear frequently overheard her new coworkers making crude sexual remarks and referring to female customers as âCuntyâ and âBig Tittie.â Working in the field proved to be worse. In mid-July, Swyear and another sales representative, Russell Scott, attended an out-of-town overnight business trip. During a conversation with the client, Scott falsely implied that he and Swyear were sharing a hotel room. Â At the hotel, Scott followed Swyear into her room and suggested that they have dinner together. Scott followed Swyear into her room without consent, got in her bed and said he wanted a âcuddle buddy.â He asked Swyear to go âskinny dippingâ with him and put his hands on her lower back and arms. Scott eventually left Swyearâs hotel room, but he later returned. Swyear pretended to be in the shower and ignored Scottâs knocking. But Scott would not relent. He repeatedly called Swyearâs cell phone, demanding to enter her room.
Swyear reported Scottâs harassment during a performance meeting about one week later. Less than one month after the meeting, Fare Foods terminated Swyearâs employment.
The Seventh Circuit concluded that the harassment was not sufficiently severe and pervasive to constitute a hostile work environment and entered summary judgment for Fare Foods. The court forgave the âcrude,â âimmature,â and âvulgarâ sexual comments because they were âoff-handâ and not directed at Swyear. Similarly, Judge Bauer, writing for the court, excused Scottâs unwelcome sexual comments, advances, and touching because it occurred just once. The courtâs decision indicates that, absent physical sexual assault, an employee cannot meet his/her burden to show a âsevere and pervasiveâ hostile work environment.
Essentially, the courtâs decision gives employers a free pass for egregious sexual misconduct, as long as it only happens once. But one time is one too many. The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement. But worse, it may have set a dangerous precedent for future sexual harassment claims.
About the Author: Krista Wallace is an Associate Attorney at Alan Lescht and Associates, P.C. in Washington, D.C. Alan Lescht and Associates, P.C., has partnered with the Timeâs Up Legal Defense Fund to represent private and public-sector workers in federal court proceedings and before administrative agencies.