In an employer-friendly decision, the Sixth Circuit Court of Appeals held that five comments about the size of a worker’s breasts over a 15-month period of time were not sufficiently severe or pervasive to constitute actionable sexual harassment. The Court concluded that the facts of the case were closer to ‘isolated incidents’ than to a ‘severe and pervasive’ work environment.

Facts

Nicole Massey worked as a security guard for Great Lakes Water Authority. In her annual performance review meeting, her supervisor allegedly commented that she “needed a more supportive bra.” On another occasion, a coworker allegedly commented that her “breasts were so big, it looked like [she] could trip over them.” In a third incident, her supervisor commented about Massey’s need to wear a bra under her uniform, which he explained was due to her decision to wear her bulletproof vest on top of (versus under) her uniform. There were two other lewd remarks allegedly made by coworkers. On summary judgment, the court presumes the facts in the light most favorable to the plaintiff-employee.

The comments were based on sex.

The Sixth Circuit held that the trial court erred in granting summary judgment on the basis that the comments were not “based on sex”–as the law requires. The Court held that, while comments about the size of a person’s breasts could be made to a man or a women, the comments were “based on sex” through the use of sex-specific and derogatory terms. The Sixth Circuit opined that the trial court overemphasized the fact that two of the alleged harassers were women.

The comments were not sufficiently ‘severe and pervasive.’

The Court, however, affirmed the grant of summary judgment to the employer, holding that the harassment was not severe and pervasive–another required element of a sex harassment claim. To be severe and pervasive, harassment must alter the working conditions of the victim’s employment and create an abusive work environment. Looking at the facts through the eyes of an objective person, the Court found the facts to be closer to “isolated incidents” than “severe and pervasive” harassment.