Appeals court unimpressed by argument that incidents not severe, pervasive

“All right, we have the bestiality, pedophilia; later we have two supervisors talking about his ‘cat walk’ and swishing of the hips, right? Well, I mean, how much do you need?” This was the question posed by U.S. 10th Circuit Court of Appeals Chief Judge Jerome A. Holmes to an attorney for Walmart, who was defending his client’s summary judgment (dismissal without a trial) victory at the district court level on a sexual harassment claim. Although the 10th Circuit’s rulings don’t directly apply to Alabama (or other states in the Southeast), the case still has lessons you can learn.

Chain of incidents over four years

A three-judge panel of the 10th Circuit (which hears appeals of federal district court decisions from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) was evaluating whether a New Mexico court had gotten it right in finding that a chain of “possibly homophobic and inappropriate” incidents toward and in front of a homosexual employee over four years was not severe or pervasive enough to constitute unlawful harassment under Title VII of the Civil Rights Act of 1964. The alleged incidents included the following: