‘Open Urinal’ in Workplace Spurs Sexual Harassment Trial

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By Patrick Dorrian

Allegheny County, Pa., must face trial on a park cleaner’s claims that she was subjected to a “disturbing” campaign of harassment in her otherwise all-male workplace that ultimately forced her to quit, including an “open urinal” in a work garage, a federal judge ruled ( Bogaski v. Cty. of Allegheny , 2017 BL 90141, W.D. Pa., No. 2:15-cv-00487, 3/22/17 ).

The ruling involves a seemingly unique wrinkle on how awareness of sexual harassment may be imputed to an employer for liability purposes. An employer typically is charged with knowledge of the existence of a hostile work environment when there is evidence an employee complained about the harassment to a supervisor or other designated person under the employer’s anti-harassment policy.

Here, Justina Bogaski presented evidence that she repeatedly complained to her first-line supervisor about the harassment and that he reported it up the chain of command, the U.S. District Court for the Western District of Pennsylvania said in the March 22 opinion. She also offered proof of the existence of the open urinal in a garage she went to daily to receive work assignments. Awareness of the open urinal likewise would allow a jury to impute knowledge of the hostile environment to the county, the court said.

The urinal didn’t have a door on it, and Bogaski, who was the sole female laborer in the county’s Public Works Department, witnessed most of her male co-workers using the urinal at one point or another, her attorney, Devin C. O’Leary, told Bloomberg BNA March 23. And there’s testimony that Bogaski’s chief tormentor, Tom Long, frequently used the urinal in her presence as a way to antagonize her, added O’Leary of O’Leary LLC in Pittsburgh.

Sufficient Evidence of Harassment

The court therefore rejected the county’s argument that it should escape liability because it wasn’t aware of the hostile work environment and Bogaski didn’t follow its harassment complaint procedures.

It also found Bogaski’s other evidence of sexual harassment sufficient to raise fact questions for a jury on her federal and state law sexual harassment and constructive discharge claims. That evidence includes that Long slapped her buttocks, her personal property was vandalized and defiled, she was called “bitch” and “Barbie” and she was the subject of “vicious” sexual rumors, the court said.

Bogaski says her complaints ended up causing her to be transferred to a different, less desirable work site, while Long was sent to another site of his choice. Moreover, the supervisor who reported her complaints to management, and also tried without success to reprimand her harassers, was transferred away from a facility where he had worked for decades, Bogaski alleges.

The same evidence also raises triable questions on Bogaski’s claim that the harassment was so bad she was forced to quit, the court said. Under U.S. Supreme Court precedent, a constructive discharge claim is really a claim for “aggravated” sexual harassment, which the facts here would support, Judge Lisa Pupo Lenihan said.

Bogaski failed to support her allegations of disparate impact sex discrimination, the court ruled, granting summary judgment to the county on that claim.

Jake S. Lifson of the Allegheny County Law Department in Pittsburgh represented the county. He didn’t respond March 23 to Bloomberg BNA’s request for comment.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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