00-3631 Berry v. Delta Airlines, Inc.

Listen to this article

“Title VII does proscribe gender-based harassment even when it is not motivated by sexual desire, and it is true that ‘[c]ourts should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment, then discounting the latter category of conduct,’ see O’Rourke, 235 F.3d at 730, thereby robbing instances of gender-based harassment of their cumulative effect. However, none of this helps Berry, because she offers nothing suggesting that the post-complaint harassment was motivated by her gender rather than the desire to punish her for her complaint. While the cases cited by Berry correctly stress that gender-based harassment need not be overtly sexual and may include ridicule, ostracism, and other forms of hostility motivated by an anti-female animus, they do not hold that hostile behavior by co-workers is actionable as sexual harassment even if it not based on gender. See Williams, 187 F.3d at 565 (ruling that a plaintiff must show that ‘but for the fact of her sex, she would not have been the object of harassment’) (citation omitted). While Berry can likely show that the post- complaint harassment would not have occurred but for her complaining of sexual harassment, this is ‘too remote a connection’ to gender to convert the retaliatory harassment into gender-based harassment. See Heuer, 203 F.3d at 1022. Therefore, even if Delta was partly responsible for the abusive post-complaint atmosphere by not doing enough to stop it, this would not make them liable for sexual harassment.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Bauer, J.