The real difficulty in summary judgment is for plaintiffs who claim pervasive sexual harassment that has created a hostile and abusive work environment. There are two keys to overcoming summary judgment in this type of case. First, the plaintiff’s declaration must include a description of the offensive events over a significant period of time. We know, for example, that incidents occurring on one day are insufficient under the pervasive criterion. Second, the plaintiff’s declaration must demonstrate that the events are sexual in nature, or at least based on a bias against the plaintiff’s gender.
For example, while sexual harassment is generally based on sexual behavior and sexual speech, the case law supports claims for sexual harassment where a boss yells more vociferously and more forcefully at members of one sex in comparison to members of the other sex.
In summary, if a plaintiff can state the basic facts in support of a claim for quid pro quo harassment or for a claim of physical violence or a threat of violence in the nature of sexual molestation, that plaintiff should be able to overcome a motion for summary judgment without too much difficulty. On the other hand, nearly every plaintiff has to be careful in setting forth the details for claims of sexual harassment based on pervasive conduct.
For claims of pervasive harassment, the plaintiff should be prepared to demonstrate repeated acts of hostility that are based on the plaintiff’s sex, and that are supported by circumstances that show the offensive activities were unwanted.