Kurt Engelhardt testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. Circuit Judge for the Fifth Circuit Wednesday, Jan. 10, 2018 Kurt Engelhardt testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. Circuit Judge for the Fifth Circuit Wednesday. (Photo: Diego M. Radzinschi/ALM)

As the legal community continues to grapple with sexual harassment allegations against judges, Democratic senators are intensifying their focus on how judges approach sexual harassment lawsuits.

In a hearing Wednesday, Democratic senators pushed U.S. District Judge Kurt Engelhardt, nominated by President Donald Trump for a spot on the U.S. Court of Appeals for the Fifth Circuit, on his decisions in several sexual harassment and discrimination lawsuits in the Eastern District of Louisiana. Senators wanted to know how and why Engelhardt decided to dismiss several cases.

The district judge said that, while the facts alleged were disturbing, he is required to perform a specific legal analysis that follows case law and precedent, and that does not always yield a certain outcome.

“The problem with the sexual harassment cases is that the facts … are so egregious, and so offensive and shocking, and so unacceptable, that you read the brief and, there must be some sort of recovery for the plaintiff,” Englehardt said in response to a question from Sen. Christopher Coons, D-Delaware. “And yet, we then get to the law and the provisions of Title VII. And we have several tests that we apply in these cases and several prongs that must be met in order for the plaintiff to overcome a summary judgment hurdle, any one of which, the plaintiff fails, and the case is subject to dismissal on summary judgment.”

As with the rest of the country, sexual harassment has taken center stage as a major issue in the judiciary in recent weeks. Late last year, Ninth Circuit Judge Alex Kozinski stepped down amid allegations of harassment from several of his former law clerks. Chief Justice John Roberts said sexual harassment requires serious attention from the federal judiciary in his year-end report.

In the hearing Wednesday, Sen. Mazie Hirono, D-Hawaii, directly asked Englehardt if he had ever made unwanted requests for sexual favors or settled any sexual harassment claims against him. He answered no to both questions.

Coons and several other senators asked Engelhardt about his 2004 opinion in a case in which the EEOC sued a Rite Aid franchisee on behalf of a female security guard who claimed she was verbally and physically harassed by her male co-workers.

In the opinion, Engelhardt wrote that, to prevail, the plaintiff had to show the harassment “altered the terms and conditions of her employment.”

Engelhardt found that the male co-workers’ actions, which included remarking on the plaintiffs’ physical appearance and brushing up against her in store aisles, were not “sufficiently severe or pervasive so as to alter a ‘term, condition, or privilege’ of employment.”

Hirono and Sen. Kamala Harris, D-California, who was just appointed to the committee yesterday, both asked about Engelhardt’s 2011 opinion in a case where the plaintiff alleged she was the victim of sexual harassment by a female supervisor. Engelhardt dismissed the case for a procedural reason but went on to address the merits in his opinion anyway.

He wrote that the alleged harassment, which included “sensual back rubs” and verbal comments, did “not rise to the level of actionable harassment.” Asked if Englehardt found it a “close case,” Engelhardt said most sexual harassment cases are “close cases” but that, in the end, legal analysis must dictate the outcome.

“Things that are not acceptable in the workplace don’t always survive the test that is set forth in Title VII,” Englehardt said.

The other case raised by several senators was one in which Engelhardt ruled against a woman who claimed she faced pregnancy discrimination. In the case, the plaintiff was on medical leave for several weeks due to pregnancy complications and was fired after having an emergency C-section.

In the 2010 opinion, Englehardt wrote that the plaintiff failed to show she was qualified for the position because she could not go to work, which was a requirement of the job.

“The fact that the Plaintiff’s absences were caused by pregnancy does not dispense with the general requirement that employees must show up for work. Indeed, it is well-established that a pregnant employee is only entitled to be treated as well as other non-pregnant employees, not better,” Engelhardt wrote.

Questioned about the ruling by Harris, Englehardt said he couldn’t recall the specifics of the case but that he was sure he applied the appropriate law.

“Again, as part of the prongs of the analysis that I’m legally required to apply, there are other employees, there are comparisons, and to show that there is some special effort made to punish or deprive a person of their position. And I know that I employed that analysis in that case because I do it in every case,” he said.

The Rite Aid case was not appealed. The other two were, but they were dismissed before the merits of the appeal were addressed.

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