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Reversing a trial court’s $50,000 award in a sexual harassment suit, a divided 4th U.S. Circuit Court of Appeals on Oct. 10 ruled that the South Carolina plaintiff failed to prove that her co-workers’ explicit sexual comments and antics were directed at her because of her gender. Ocheltree v. Scollon Productions Inc., No. 01-1648. For 18 months, while working in the production workshop of Scollon Productions, a manufacturer of sports mascot and licensed character costumes, Lisa Ocheltree claimed many of the men in the shop continually talked about sex; made comments about other people’s sexual habits; used foul, vulgar and profane language and told sexually oriented jokes. In three instances she said were specifically aimed at her, she alleged that someone sang a crude song to her, a group of men asked her reaction to a picture of pierced male genitalia and two men performed simulated sex acts on a mannequin. In a majority opinion, 4th Circuit Judge Karen Williams said the three episodes were spaced out over such a long period that they could not constitute a hostile environment. The majority also said that Ocheltree could not prove that any of what happened was directed at her because she was female. She was in a group or she overheard things, the court said, and no evidence suggested the bawdy behavior either started or escalated when Ocheltree started working there. Ocheltree presented “no evidence demonstrating that she would not have been exposed to the same offensive behavior had she been male,” Williams wrote. Ocheltree’s lawyer, William E. Hopkins Jr. of Columbia, S.C.’s McCutchen, Blanton, Rhodes & Johnson, said Scollon’s work environment was the most crude and offensive he had ever seen. But Scollon Productions attorney Charles F. Thompson Jr. of Columbia’s Tally, Malone, Thompson & Gregory, said no such atmosphere existed, adding that the circuit court had accepted the plaintiff’s version of the facts on review. “Even assuming that such an environment existed, there haven’t been many decisions where the alleged conduct sounded so bad, yet the court refused to be distracted and stuck to what Title VII was intended to address: conduct based on gender. Title VII was never intended to be a civility code,” Thompson said. Both lawyers did agree that the pointed criticism exchanged by the majority’s Williams and dissenting Judge M. Blane Michael was unusual. Williams took nearly half of her 23-page opinion to make an admittedly “extended response” to the dissent, chastising Michael’s opinion for its detailed account of the salacious conduct, calling it “shock value.” Williams also wrote that Michael’s arguments were based on paternalistic and outdated stereotypes of contemporary women. Noting sexually explicit comments Ocheltree herself made, Williams added that Ocheltree was not the model of the femininity the dissent had sought to protect. Michael acknowledged that some of the specific words used were not disproportionately demeaning to women, but added that the rest of the comments and behavior, particularly the frequent stories about receiving oral sex, were. “Comments like these portray women as sexually subordinate to men; indeed, it is not too strong to say that the overall tenor of the workplace banter conveyed the message that women exist primarily to gratify male desires for oral sex,” Michael wrote. “A reasonable woman would find this message offensive, to say the least.” Hopkins, who plans to file a petition for rehearing en banc, agreed and speculated that the opinion will “absolutely discourage women from bringing these types of cases.”

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