Elements of a Hostile Work Environment Sexual Harassment Claim

A hostile-work-environment claim of sexual harassment against an employer may result from the conduct of the plaintiff's co-employees. The elements of the cause of action are as follows: (1) a supervisor; (2) because of sex; (3) subjects an employee to; (4) unwelcome conduct; (5) that is severe and pervasive; (6) creates an abusive work environment; (7) affects a term, condition, or privilege of employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 780, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998); Vinson, 477 U.S. at 67; Soto v. El Paso Nat. Gas Co., 942 S.W.2d 671, 678-80 (Tex. App.--El Paso 1997, writ denied). A supervisor's conduct may be imputed to his employer either because the supervisor was directly responsible for the harassment or because the supervisor failed to act to abate sexual harassment by others after learning of it. See Faragher, 524 U.S. at 808; Coates v. Sundor Brands, Inc., 160 F.3d 688, 693 (11th Cir. 1998); Soto, 942 S.W.2d at 678; Ewald, 878 S.W.2d at 659. Certain factors can be considered in assessing whether a work environment is hostile or abusive: the frequency and severity of the abusive conduct, whether the conduct was physically threatening or humiliating, and whether the conduct unreasonably interfered with the plaintiff's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). The jury may determine from all the circumstances whether "a reasonable person would find the environment hostile or abusive," provided the plaintiff personally and subjectively perceived the environment to be abusive. A showing of "tangible psychological injury" is not required: "Title VII comes into play before the harassing conduct leads to a nervous breakdown." Id. at 21. An employer may avoid liability by pleading and proving as an affirmative defense that it had a policy in place to prevent or correct sexual harassment and that plaintiff unreasonably failed to take advantage of it. See Faragher, 524 U.S. at 806-07.