Federal Court Rules Death Threats Can Support Sexual Harassment Claim

On June 29, 2010, the Court of Appeals for the Second Circuit, a federal appellate court which handles federal appeals from New York, ruled that a supervisor’s death threats to an employee can be evidence to support a sexual harassment case. The case, Kaytor v. Electric Boat Corporation, involves Sharon Kaytor’s allegations that her boss, Daniel McCarthy, sexually harassed her. Some of Ms. Kaytor’s allegations are sexual in nature. For example, she claims Mr. McCarthy complimented her clothing, told her she looked good for a woman her age, stared at her body, leered at her, made it clear he “had designs” on her, told the entire office she had a “flat ass,” gave her a pussy willow bush as a gift for Administrative Professional’s Day, said she was about to “spread her legs” for her doctor, and referred to her upcoming appointment with her gynecologist as “going where every man wanted to be.” But some of Ms. Kaytor claims are not sexual at all, and have no obvious connection to the fact that she is a woman. Specifically, she claims McCarthy told her he wanted to choke her and that he wanted to see her in a coffin, at least six times each.

The trial court dismissed all of Ms. Kaytor’s claims before her case could get to a trial, finding she had not proven the sexual harassment was severe or frequent enough to create a hostile work environment. It did so partially because it did not count the death threats as part of her sexual harassment claim, since they were not sexual in nature. The trial court also dismissed Ms. Kaytor’s claim that the company retaliated against her when it transferred her to work for another supervisor the day after she complained to the Human Resources (HR) department about the harassment, and in that new position took away some of her job responsibilities, gave her very little work to do, changed her work hours, isolated her, and repeatedly summoned her to unnecessary meetings with HR after she complained to HR about the sexual harassment.

But the Second Circuit disagreed. It ruled that although an employee with a sexual harassment claim must prove the harassment was based on her gender, the harassment does not necessarily have to be based on sexual desire. As a result, although Mr. McCarthy’s death threats were not sexual and did not refer to Ms. Kaytor’s gender, when considered together with all of the other evidence of sexual harassment, a jury could find he threatened her because she is a woman. The Court reached this conclusion even though Mr. McCarthy also threatened to choke a male employee, since otherwise a male employee could get away with sexual harassment by occasionally harassing male workers even though his real targets are women.

The Court also found that Ms. Kaytor should have an opportunity to prove her retaliation claim. It ruled that a jury could find that the company, in effect, demoted her when it reassigned her work and reduced her job responsibilities right after she complained to HR. A demotion can be retaliatory, even when it does not lower an employee’s salary or job title, if it is bad enough to discourage other reasonable employees from coming forward with discrimination or harassment claims. As a result, the appellate court concluded that although the company claims it transferred Ms. Kaytor to separate her from her manager while it was investigating her sexual harassment claim, a jury could find that the company was harassing her. Accordingly, the Second Circuit sent Ms. Kaytor’s case back to the lower court, for a trial.


If you have experienced sexual harassment at work, you should contact a sexual harassment lawyer to discuss your legal rights.