Retaliation Claim Survives Even When Underlying Sexual Harassment Claim Fails

Sometimes courts raise the bar on sexual harassment claims too high. Whether the sexual harasser’s conduct is “severe” or “pervasive” enough to go to trial often seems to be determined by the subjective lenses of the judges. The judges’ lenses are often colored by their own life experience. Certainly whether a judge is a “he” or “she” may impact the analysis. Although here in Westendorf v. West Coast Contractors of Nevada, Inc. 712 F.3d 417 (9th Cir 2013), the three judge panel, including a female judge, all found against Ms. Westendorf’s sexual harassment claim. Judges ought to walk a mile in the shoes of the victims of this offensive conduct, and they might not be so quick to declare that the conduct isn’t severe or pervasive enough. I guess the judges weren’t as offended as I was by all the talk about breasts and orgasms.

However, the same panel of judges did understand that Ms. Westendorf’s claim for retaliatory termination should go forward, holding that there was a material fact as to whether she was fired because she complained of the crude and offensive remarks.

So, for Ms. Westendorf, the glass is half empty or half full, depending on the perspective!!

Jody I. LeWitter