# Marguerite Hicks v. The Gates Rubber Company > Court of Appeals for the Tenth Circuit · November 25, 1987 · 833 F.2d 1406 URL: https://www.frixlaw.com/law-library/cases/9476958 ## Case - **Full name:** Marguerite HICKS, Plaintiff-Appellant, v. the GATES RUBBER COMPANY, Defendant-Appellee - **Court:** Court of Appeals for the Tenth Circuit - **Decided:** November 25, 1987 - **Citations:** 833 F.2d 1406; 44 Empl. Prac. Dec. (CCH) 37,542; 45 Fair Empl. Prac. Cas. (BNA) 608; 1987 U.S. App. LEXIS 15439 - **Precedential status:** Published - **Opinion:** Dissent by Seth - **Judges:** Holloway, Seth, Crow - **Cited by:** 460 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476958 ## How later opinions describe it (automated extraction) - concluding that evidence that other employees had been sexually harassed should be considered by the trial judge in determining whether a hostile-work- environment claim has been established and noting that “the few courts that have addressed this issue have generally conclude… - holding that employer liability could arise under the principles of Restatement § 219(2) if: (1) the employer was negligent or reckless; or (2) the employee relied on the supervisor’s apparent authority; or (3) the supervisor was aided in his harassment by the existence of the… - explaining that incidents of 22 sexual harassment directed at employees other than the plaintiff can be used as proof of a hostile 23 work environment claim because one of the critical inquiries is the “general work atmosphere” as -15- 1 well as specific hostility to the plain… - explaining that incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of a hostile work environment claim because one of the critical inquiries is the “general work atmosphere” as well as specific hostility to the plaintiff - holding that evidence of racial harassment could be considered in a claim for a sexually hostile work environment ## Opinion text SETH, Circuit Judge, dissenting: I must respectfully dissent from the majority opinion because I cannot accept the quotation in the majority opinion (slip opinion, page 1415) from McKinney v. Dole, *1420 765 F.2d 1129 (D.C.Cir.), as a definition or rule that we should follow in this circuit. McKinney v. Dole, in my view, goes far beyond Meritor Saving Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 , 91 L.Ed.2d 49 , as to the breadth of Title VII, and in defining how pervasive the “unequal treatment” must be. The court of appeals in McKinney v. Dole in referring to “unequal treatment” stated that it must be “sufficiently patterned or pervasive.” “Sufficiently” in referring to some generalized undefined condition does not seem to provide a useful standard and would seem to do violence to disparate treatment doctrines. We are not here concerned with the general conditions in the marketplace but instead with whether the sexual harassment of the plaintiff caused a change in the plaintiffs conditions of employment and whether sexual harassment created an abusive environment. The Supreme Court in Meritor states (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.)), by referring directly to sexual harassment of the plaintiff: “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ Respondent’s allegations in this case — which include not only pervasive harassment but also criminal conduct of the most serious nature— are plainly sufficient to state a claim for ‘hostile environment’ sexual harassment.” The Supreme Court does not center on “unequal treatment” but on sexual harassment of the plaintiff with the consequences on her conditions of employment. It is all very specific. In the case before us the trial court found that there had been two incidents involving the same male employee and plaintiff which had sexual implications. This was a finding of fact as to the working environment and does not approach the statement of the doctrine in Meritor, but would perhaps conform to the generalized statement in McKinney v. Dole which the majority would adopt instead. On another point the majority agrees with the trial court’s finding that the work environment was not openly hostile to black employees. However it directs the trial court on remand to aggregate “racial hostility” and “sexual hostility” in determining the pervasiveness of “the harassment.” The opinion cites Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 . The majority also refers to Jefferies v. Harris Cty. Community Action Ass’n, 615 F.2d 1025 (5th Cir.). There are, of course, many cases wherein discrimination is alleged based on both sex and race and many where both have been found to exist. However, it is difficult to see how we could on remand aggregate “racial hostility” where none was found to exist with anything else. Here again the majority would have the trial court evaluate the impact of the overall working conditions arising from whatever cause rather than try the case as a sexual harassment case under Meritor. The case as it now stands is not a combination of statutorily protected characteristics advanced as a subclass as in Jefferies nor as a “plus” case. I would affirm the trial court in all respects. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476958. Public record. Not legal advice.