Starting tomorrow.
Today, let’s talk about the employee who claimed sexual harassment because her male co-worker constantly stared at her with an erection — which she subsequently photographed and showed to other co-workers, and all of that morphed into a retaliation claim.
So, basically, this post will be like a sophisticated bar exam question.
Ok, let’s talk about the facts in Furcron v. Mails Centers Plus, LLC (opinion here).
Quit pointing that thing at me!
The plaintiff began working for the defendant back in 2008. And all was well for several years.
Well, until a new male co-worker was transferred into the plaintiff’s work area. Now, this male co-worker apparently came with some baggage. “Baggage” is a polite word for maybe creeping out some female co-workers. That is, there was evidence presented that the male co-worker’s employer had counseled him on multiple occasions about his treatment of women at work — like stalking women in the parking lot.
Still, the plaintiff initially tried to make nice with the male co-worker. However, she believes her male co-worker mistook her friendly demeanor for flirtation. According to the plaintiff, during their six days working together, he alleged frequented her work area and invaded her personal space. At other times, she said the male co-worker stared at her from afar, attempted to look down her shirt and at her underwear when she bent over.
That, and he allegedly “exhibited an erect penis while staring at her” daily and rubbed it against her.
Ewwwww…..
The plaintiff allegedly told the co-worker to knock it off. But, when that didn’t stop the problem, she complained to her supervisor who, supposedly, told the plaintiff that the male co-worker meant no harm and that his conduct should be tolerated because he had Asperger’s Syndrome.
I see your erection and raise you a crotch pic.
So, to prove her case so to speak, the plaintiff took a picture of her male co-worker from the neck down. She then showed this picture to both management and come female co-workers. The plaintiff claims that she showed the picture to the female co-workers only to make management take her complaints seriously.
Ultimately, the plaintiff was fired. According to the company, it was because she took “sexually suggestive pictures of a male associate’s private without his permission or knowledge. Stored them in her camera and displayed the picture to other associates . . . .” Indeed, the company had a policy against “written or graphic material that denigrates or shows hostility or aversion toward an individual or group on the basis of sex or disability.” Plus, HR told her to stop showing the picture to co-workers and discussing it with clients.
The plaintiff claimed that her firing was in retaliation for complaining about her co-worker’s behavior.
Was the male co-workers behavior directed at the plaintiff because of her sex?
While the lower court thought otherwise, the Eleventh Circuit saw something wrong with a little bump n grind. (Dammit, I buried the lede!)
A reasonable jury could infer from this evidence that the discrimination complained of was based on sex, or that Furcron’s work conditions were altered based on sex.
Was firing the plaintiff retaliatory?
Or legitimate because she, herself, violated the workplace harassment policy? Apparently, the latter:
As it appears the terms of MCP’s harassment policy are directed specifically to this type of conduct—and Furcron does not argue otherwise—her showing photographs of Seligman’s crotch area to other co-workers would, presumably, amount to a violation. Indeed, Senior Operations Manager Wright characterized the conduct as “draw[ing] a red flag for somebody to call [Human Resources].” Moreover, Wright gave uncontradicted testimony that he had instructed Furcron to not take pictures of associates on a prior occasion. Thus, Furcron’s argument on this point amounts to “quarrelling with the wisdom” of MCP’s given reasons for termination, rather than exposing inconsistencies and contradictions in those reasons.
What can employers take away from this hot mess?
Well, let’s start by training our managers to take all complaints of workplace harassment seriously and without pre-judging or condoning anyone’s actions. But also, don’t be afraid to enforce your work rules against someone who has complained against workplace harassment, especially where the terminated employee has been first been warned about her bad behavior.
Image Credit: By Saffron Blaze – Own work, CC BY-SA 3.0, Link