In Westendorf v. West Coast Contractors of Nevada, Inc., the Ninth Circuit upheld the dismissal of a sexual harassment complaint, despite offensive comments made by plaintiff's supervisor and coworkers, including a request that she wear a maid's costume at work.

Jennifer Westendorf was a project manager assistant at West Coast Contractors (a construction contractor) for about five months. At the beginning of her employment, her supervisor (Dan Joslyn) called her tasks "girly work" and then apologized. Once per week, Westendorf worked in a trailer at a construction site where employee Patrick Ellis was stationed. Joslyn also supervised Ellis. Over the course of a few months, and on four or so occasions, Ellis made a few comments to Westendorf regarding the size of a coworker's breasts, women's use of tampons, and multiple orgasms. He also told her she needed to clean the trailer while wearing a French maid's costume and said "f*** you" to her several times. Joslyn participated in the discussion about a coworker's breasts and laughed at Ellis's jokes. After Westendorf complained about the behavior, she was terminated.

The court held that the alleged harassment was not severe or pervasive and thus could not support a sexual harassment claim, because there were only about a half dozen incidents (of the clearly sex or gender-based comments), all involving verbal comments, over a five-month period. Thus, the sexual harassment claim was dismissed, but her retaliation claim survived.

This case highlights a very important distinction between harassment and retaliation claims. Westendorf did not have enough evidence to support a harassment claim. Yet for a retaliation claim, she need only show protected activity (i.e., a good faith complaint about harassment, not that the conduct actually constituted actionable sexual harassment) and a causal connection between that activity and her eventual termination. This is a reminder for employers that retaliation claims can often survive even when the underlying harassment cannot be proven.