In modern employment litigation, the employer’s ultimate goal is to prevail at summary judgment, thereby avoiding the expense of trial and the unpredictability of a jury. A recent decision from the Fourth Circuit Court of Appeals, however, indicates it is going to be increasingly difficult for an employer in this circuit to prevail at summary judgment on claims of sexual harassment.
 
In Walker v. Mod-U-Kraf Homes, LLC, 988 F.Supp.2d 589, 596-97 (W.D. Va. 2013), the district court for the Western District of Virginia granted summary judgment to the employer on the plaintiff’s sexually hostile work environment claim, holding that she failed to present evidence that an objectively reasonable person would perceive the complained-of behavior as abusive or hostile. Good news, right? Not so fast. On appeal, the Fourth Circuit reversed and held that “the facts presented in the record are simply too close…for summary judgment to be appropriate.” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 210 (4^th Cir.2014).
 
The importance of the Court’s decision was not its recitation of the law, but rather, the facts upon which the Court relied. There were no allegations of physical touching, demonstration of sexual acts, propositioning or threatening behavior, which have been present in most Fourth Circuit cases denying summary judgment to an employer. The sole basis for the plaintiff’s claim was “inappropriate sex-based comments [made] on a near-daily basis” by a male co-worker. Specifically, the allegations were that:
 

• Two or three times a week Mullins would grab his crotch and say, ‘these nuts are looking for you.’ With the same frequency, he would call out, ‘[t]here she goes, there it is.’ Mullins would stick his tongue out at Walker and other female employees and snicker.’ Other times he would grab his crotch and exclaim, ‘oh, oh, oh’ or say, ‘I bet you could holler real loud, couldn’t you.’ After Walker began dating a co-worker, Ray Cassidy, in March 2011, Mullins also made comments to him within Walker’s hearing about Walker performing oral sex. For example, one day when Walker went into a box at work, Mullins suggested to Cassidy that if he ‘want[ed] a blow job’ he should join her.

 
Id. at 205. The final incident occurred on July 20, 2011, when Walker and Cassidy were walking to lunch and Mullins kept saying “[w]einer in the mouth, weiner in the mouth.” Id. at 206. The district court described the comments as inappropriate and unprofessional, but nonetheless determined they were “simply not of the same magnitude as that which the Fourth Circuit has found sufficiently severe or pervasive [so as] to constitute actionable sexual harassment.”
 
The Fourth Circuit disagreed, stating that “a reasonable jury could rationally find that the consistent and repeated comments” by plaintiff’s co-workers “painted women in a sexually subservient and demeaning light [that is] sufficiently severe or pervasive as to alter the conditions of [plaintiff’s] employment and to create an abusive work environment.”  The Court’s ruling was influenced by two main issues:
 
1.    The standard at summary judgment that the facts must be construed in favor of the plaintiff as the non-moving party; and
2.    That the determination of whether or not harassment is objectively severe or pervasive is ordinarily a question of fact reserved for the jury.
 
According to the Fourth Circuit, a court can only grant summary judgment to an employer based on the severe or pervasive nature of the alleged conduct where “the facts are clearly insufficient to satisfy the standard.” Here, the Court determined that the facts presented were too close a call and “where there is a close question and reasonable minds could differ when weighing all the facts against the law, then summary judgment is inappropriate.” Id. at 208
 
The Fourth Circuit emphasized that harassment need not involve touching or physically threatening conduct to be actionable. This means that inappropriate comments alone can state an actionable sexual harassment claim. This ruling will make it very difficult for an employer to prevail at summary judgment. More cases will be sent to the jury as district courts will likely err on the side of caution to avoid reversal on appeal, which will have the added effect of increased litigation costs for a defending employer.
 
One of the factors that likely influenced the Fourth Circuit’s ruling was the failure of the employer to take any effective corrective action despite the plaintiff’s evidence that she complained about the harassment to her supervisors on multiple occasions. If employers have any hope of prevailing at summary judgment on sexual harassment claims, they must maintain a well-written anti-harassment policy that includes a clear reporting procedure. Moreover, the employer must train its workforce and its managers on the specifics of the policy, and those managers need to enforce it. 
 
Having and enforcing a policy is not enough, however. In addition to a good policy, an employer should insist on good documentation of any actions taken in response to a complaint of harassment. Good documentation was what allowed the Fourth Circuit to affirm the grant of summary judgment to the employer on the plaintiff’s claim of retaliation.
 
Plaintiff was terminated following a physical altercation with another employee, but argued it was actually retaliation for her complaints of sexual harassment. The undisputed evidence established that immediately following the altercation, management interviewed witnesses and took written statements to determine what happened. Those statements uniformly described plaintiff as the aggressor in the altercation. Members of management and human resources met and decided to terminate plaintiff based on the results of the previously conducted investigation.
 
This documentation served two purposes: (1) it was contemporaneous, written support for the employer’s nondiscriminatory reason for plaintiff’s termination, and (2) it practically foreclosed any argument plaintiff could offer that the employer’s decision was pre-textual. The need for adequately and contemporaneously documenting a situation cannot be understated. To prevail on future claims of harassment, discrimination or retaliation, make sure management is documenting actions in real time.
 
An employer today should not be asking whether they will ever be sued, but when.  Having good documentation will serve employers well on that unfortunate day they are faced with litigation.
 
If you have any questions regarding this or for any other labor & employment matter, contact our Labor & Employment Practice Group.