Sexual harassment is defined as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” (See Howard University v. Best, 484 A.2d 958, 978-79 (D.C. 1984); 29 C.F.R. § 1604.11(a); Bundy v. Jackson (1981) 641 F.2d 934, 947.)
“The District Government has also defined ‘sexual harassment’ which required all District of Columbia government agencies to investigate and adjudicate claims of sexual harassment, defined sexual harassment as: the exercise or attempt to exercise by a person of the authority and power of his or her position to control, influence or affect the career, salary, or job of another employee or prospective employee in exchange for sexual favors.” (See id.)
“Sexual harassment may include, but is not limited to:
(See id.)
“These guidelines, which are more specific than the EEOC guidelines (though by no means exhaustive), offer assistance to a trial court faced with the question whether the plaintiff has established a prima facie case.” (See id.)
“Section 211(a)(1) of the District of Columbia Human Rights Act, codified as D.C. Code § 1-2512(a)(1), states that it is an unlawful discriminatory employment practice: (1) To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion on the basis of, inter alia, sex.” (See Howard University v. Best (1984) 484 A.2d 958, 977.)
“It is substantially similar to Title VII, 42 U.S.C. § 2000e-2(a)(1) (1966) which also makes it an unlawful employment practice: to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” (See id.)
“To establish a prima facie case of sexual harassment under Title VII, a plaintiff must demonstrate that:
(See Howard University v. Best (1984) 484 A.2d 958, 978.)
“The first element may be demonstrated by a simple stipulation of the employee's gender. As to the second element, unwelcome conduct is conduct . . . [which] the employee did not solicit or incite . . . and . . . the employee regarded . . . as undesirable or offensive.” (See id.)
“These elements are an outgrowth of the elements required by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to establish a prima facie case of racial discrimination based on disparate treatment (as distinguished from cases of disparate impact, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)) in private, non-class actions, Title VII suits.” (See id.)
“This court reviews the grant of a motion for summary judgment de novo.” (See McFarland v. George Washington (2007) 935 A.2d 337, 345-46; Joyner v. Sibley Memorial Hospital (2003) 826 A.2d 362, 368.)
“[T]o be entitled to summary judgment, [the moving party] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law. Although we view the evidence in the light most favorable to the party opposing the motion, [c]onclusory allegations by the nonmoving party are insufficient to establish a genuine issue of material fact or to defeat the entry of summary judgment.” (See id; Colbert v. Georgetown University (1994) 641 A.2d 469, 472; Super. Ct. Civ. R. 56(c)); Hollins v. Federal National Mortgage Association (2000) 760 A.2d 563, 570.)
“The DCHEA prohibits an employer from discharging or failing to promote an employee based on race, sex, or other prohibited reasons. "In considering claims of discrimination under the DCHRA, we employ the same three-part, burden-shifting test articulated by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." (See McFarland v. George Washington (2007) 935 A.2d 337, 345-46; D.C. Code § 2-1402.11(a)(1); Hollins v. Federal National Mortgage Ass'n (2000) 760 A.2d 563, 571; Atlantic Richfield Co. v. District of Columbia Commission on Human Rights (1986) 515 A.2d 1095, 1099.)
“In order to survive a motion for summary judgment, [the employee must] establish a prima facie case that [the employer discriminated against him]. If such a showing is made, the burden shifts to the employer to articulate a legitimate basis for [its action]. If the employer articulates a legitimate, non-discriminatory basis for the [action], the burden shifts back to the employee to demonstrate that the employer's action was pretextual.” (See McFarland v. George Washington (2007) 935 A.2d 337, 345-46; Blackman v. Visiting Nurses Association (1997) 694 A.2d 865, 868.)
“It is the burden of production that shifts in this process. [T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” (See id; Hollins v. Federal National Mortgage Ass'n (2000) 760 A.2d 563, 571; St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407.)
It is well settled that "to prove sex or gender discrimination under the DCHRA, [plaintiff is required] initially, to make a prima facie showing of discrimination by a preponderance of the evidence.” (See Purcell v. Thomas (2007) 928 A.2d 699, 710; United Mine Workers of America, Int'l Union v. Moore (1998) 717 A.2d 332, 338.)
It is also well settled that “sexual harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, and plaintiff must show that her psychological well-being has been detrimentally affected.” (See id; Howard Univ. v. Best (1984) 484 A.2d 958, 978.)
“More than a few isolated incidents must have occurred, and genuinely trivial occurrences will not establish a prima facie case, but [n]o specific number of incidents, and no specific level of egregiousness, can be set forth; nor is the fact that each incident may not be individually actionable determinative. Instead, the trier of fact must consider the totality of the circumstances.” (See id.)
“Conduct need not . . . be overtly sexual to contribute to a sexual harassment hostile work environment claim. Rather, all adverse conduct is relevant so long as it would not have taken place but for the gender of the alleged victim.” (See Purcell v. Thomas (2007) 928 A.2d 699, 710; Psychiatric Inst, of Washington v. District of Columbia Comm'n on Human Rights (2005) 871 A.2d 1146, 1151; Williams v. General Motors (1999) 187 F.3d 553, 565.)
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