On July 21, 2014, the 7th Circuit held that night-shift staff use of an employee’s desk for sex every night did not create an actionable hostile work environment. Orton-Bell v. State of Indiana, No. 13-1235 (7-21-2014). In order to establish a hostile work environment claim under Title VII, an employee must meet all of the following elements: (1) the work environment must be both subjectively and objectively offensive; (2) the employee’s gender must have been the cause of the harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for employer liability. The plaintiff reported the nightly sex-on-her-desk to her supervisor, who did not intervene, but told her to wash down her desk every morning. However, these facts did not satisfy the second element. The actions of the staff and supervisor were not motivated by the plaintiff’s gender. There was no unlawful discrimination on the basis of sex.

The 7th Circuit found that an endless barrage of sexual charged comments, which the plaintiff endured daily, satisfied all the elements required for a hostile work environment claim. The 7th Circuit reversed summary judgment on the plaintiff’s hostile work environment claim, but affirmed summary judgment on her retaliation claim. Although the plaintiff complained to management about harassment when she reported the incidents, she did not connect the harassment to her gender. She did not engage in protected activity, which is required for a retaliatory discharge claim.