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Bathroom peeping did not create hostile work environment
April 09, 2006 by Ross Runkel at LawMemo

A male supervisor used a bathroom peephole 2-3 times a day for more than three years to watch a female employee use the toilet. This did not create a hostile work environment because the employee was unaware of it. So says the 8th Circuit in a 2-1 decision.

Cottrill v. MFA, Inc (8th Cir 04/07/2006). Employment Law Memo notified its readers about this case in the April 10 issue, which was emailed April 9.

If that were the whole story, I could understand a court saying that an employee's terms and conditions of employment are not changed by a supervisor's actions when the employee doesn't know about them.

There's more to the story:

• The employee suffered a rash from an unknown cause. She believed it was caused by a sticky substance frequently found on the toilet seat. Later, management found corn starch and old leaves that an agronomist thought was poison ivy - located in the room from where the peeping took place.
• Management asked the employee to use the restroom so they could catch the supervisor on video. She testified that she agreed "because I was told that was the only way they could fire him."
• The employee testified there were other peepholes that management did not cover up.
• When the employee found out about the peeping, she got physically ill and left work.

The majority said the employee could not rely on the peeping because she was not aware of it.

The dissent cited a series of things that, taken together, could lead a reasonable jury to conclude that the harassment was pervasive or serious enough to be actionable:

• Employee got physically sick when she learned of the peeping.
• Management enlisted her as bathroom bait.
• The rash, the substance on the toilet seat, and the stuff found in the supervisor's break room.
• Another employee had a burning sensation after using the toilet.
• The employee testified that, after the bathroom incident, management delayed her workers compensation claim, reluctantly granted it, shamed her publicly, and told her to "forget" what happened.

My view:

• Can't help noticing this was two male judges vs. one female judge.
• Can't help noticing this was two Republican appointees vs. one Democrat appointee.
• I like juries. Juries are supposed to be the fact-finders. Deciding this case on summary judgment is an example of a court that weighed the evidence itself instead of letting a jury do it. This seems to be a frequent theme in the 8th Circuit.

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