The 7th U.S. Circuit Court of Appeals has chided attorneys in a sexual harassment case for their use of the word “hellish.” But the court might also have blamed its most high-profile member, Judge Richard A. Posner, for the lawyers' faux pas.

Defense counsel for Racine County, Wisc., had used “objectively 'hellish'” as the standard by which the Title VII sexual harassment claims of four female employees at the county's child support agency should be judged.

The women alleged, among other things, that supervisor Robert Larsen made overtly sexual remarks to them on a daily basis, asked them “Can I give you a kiss?” while offering a chocolate Hershey's kiss, and subjected them to unwelcome touching.

“[T]here is simply no evidence upon which a jury could conclude that [one of the plaintiffs'] working conditions were objectively 'hellish,'” the defense said in an appellate brief.

The 7th Circuit affirmed summary dismissal of the case last week. But Judge Diane P. Wood, writing for the court, stressed that working conditions do not have to be “hellish” for a harassment claim to succeed.

Supreme Court precedent establishes that “something short of the Ninth Ring may violate the statute,” her opinion said, and counsel should in future

avoid the use of a single, overwrought word like “hellish” to describe the workplace and focus on the question whether a protected group is experiencing abuse in the workplace, on account of their protected characteristic, to the detriment of their job performance or advancement.

What Wood and the other two panel members, Chief Judge Frank H. Easterbrook and Judge Kenneth F. Ripple, did not mention is that the attorneys took their cue from an opinion written by Posner in 1995.

“The concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women,” the distinguished 7th Circuit jurist wrote in Baskerville v. Culligan International, 50 F.3d 428.

The trial court's summary judgment order in Jackson v. County of Racine also used that language, finding that the plaintiffs' evidence

could not reasonably lead to the conclusion that Larsen subjected the plaintiffs to an environment that could be described as hellish.

Posner did not suggest “objectively 'hellish'” as an evidentiary standard. But Baskerville is one of his more glib opinions and shows that if you give some attorneys an inch, they will take a mile.

By Matthew Heller
2/6/07