On December 26, 2018, in the case of Amy Swyear v. Fare Foods Corporation, the Seventh Circuit affirmed a ruling granting summary judgment to a defendant-employer on several claims relating to the treatment and termination of the plaintiff-employee. The court’s opinion focused on the sexual harassment claim, which alleged a hostile environment during the few months of Swyear’s employment.
Plaintiff Amy Swyear was hired as a sales representative by defendant Fare Foods Corporation in June 2015. Swyear soon noticed that the environment at Fare Foods was at times unprofessional. For example, employees and customers were referred to by offensive and vulgar nicknames. Staff openly discussed the sexual activities of sales representative Russell Scott and disparaged the women with whom Scott associated. Swyear overheard coworkers talk about how one female employee dressed inappropriately. Swyear also testified that she was reprimanded by the sales manager for wearing shorts to the office. Swyear did not lodge any internal complaint regarding these incidents.
In mid-July 2015, Swyear had several uncomfortable interactions with Scott during the course of a business trip. Swyear stated that Scott acted in a way that implied a romantic relationship between the two, including touching her on the back and arm and standing in close proximity to her. After going to dinner, Scott implied they could go skinny dipping, and later made his way into Swyear’s hotel room and crawled into her bed. Scott left but returned and knocked on Swyear’s door multiple times. Swyear stated that she was offended and made uncomfortable by the interactions with Scott but always felt in control of the situation. Swyear later reported Scott’s behavior from the business trip. Fare Foods’s human resources supervisor investigated and decided no discipline was warranted.
In late July 2015, Swyear had a performance review during which the human resources supervisor and sales manager discussed how she could improve her performance. Swyear had a second performance review in early August 2015 during which she was given 30 days to improve her performance, including using company vehicles for work-related activities only. Despite this, Swyear drove a company vehicle home after the review. Swyear was terminated on August 6, 2015.
Swyear subsequently filed a complaint alleging sexual harassment, sexual discrimination, and retaliation in violation of Title VII, and breach of contract. Both parties moved for summary judgment, and the district court granted Fare Foods’s motion in its entirety. Swyear appealed.
Focusing on the sexual harassment claim, the Seventh Circuit explained that a successful hostile work environment claim requires a showing that the environment was “severe and pervasive,” and requires proof of both an objective and subjective component. Though Swyear established the subjective prong based on her testimony that she found the environment to be sexist and offensive, she was unable to show it was objectively offensive. Citing its own precedent from 2012 and 2002, the court noted the “high bar” for sexual harassment claims and its presumption that “employees are generally mature individuals with the thick skin that comes from living in the modern world.” Thus, employers “generally do not face liability for off-color comments, isolated incidents, teasing, and other unpleasantries.”
Though the court acknowledged that the environment at Fare Foods was “at time inappropriate and offensive,” it did not find that this created a work environment that a reasonable person would find intolerable, particularly because much of the complained-of conduct was not directed towards Swyear, but merely overheard by her, nor was it used to physically threaten or humiliate her. The court also found that Swyear’s interactions with Scott, while “entirely inappropriate,” did not constitute sexual harassment because his actions were not forceful, occurred on only one occasion, and were immediately and sufficiently responded to by Fare Foods once reported. Additionally, the court noted, Swyear testified that she always felt she was in control of the situation, and she failed to show that the environment at Fare Foods interfered with her ability to do her job.
Perhaps what is most notable about this case is that it does not set a new standard, but rather affirms earlier Seventh Circuit precedent. It is an important reminder that the high bar for sexual harassment claims remains in place, even in the midst of the #MeToo movement and the corresponding increased sensitivity to claims of misconduct in the workplace, especially those involving sexual impropriety. In any event, even if the legal threshold has not been lowered, employers should remain hyper-vigilant about responding to complaints of sexual harassment because business and public relations risks have intensified substantially since the #MeToo movement began gaining steam.
