Yeah, right!
Although, in fairness, the unique facts of this case long pre-date the pandemic.
This one involves a female plaintiff, a professor at a university, who claimed that the male professor who recruited her and later became her boyfriend sexually harassed her after the breakup. What did he do to her exactly? According to the plaintiff, he exposed his buttocks to her on two occasions and, on a third occasion, commented to her about having had sex with a donor.
Before we analyze the alleged behavior, I’ll remind you what a plaintiff must establish to prevail on a hostile work environment claim. An employee seeking to bring a hostile work environment claim must demonstrate that: (1) she is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed because of her membership in a protected class; and (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.
Here, the defendants argued that the male professor’s conduct was not sexual because he showed the plaintiff his bare butt specifically to get her medical opinion on the lesions on his buttocks.
Well, that’s a new one. Let’s see how the court dealt with that argument:
“[T]here is no dispute that [the male professor] did not similarly expose himself to male faculty at the Center. Although the parties agree that there were no other men at the Center with the same clinical training as [the plaintiff] (besides [the male professor]), his treatment of her provides some evidentiary basis for inferring that facially sex-neutral incidents were motivated by [her] gender.”
But hold up! Doesn’t their previous romantic relationship count for something? The male professor noted it was “nothing she hadn’t seen before.” No, that’s not such a great argument:
“[T]he argument that a prior relationship obviates sex discrimination because harassing treatment is based on personal animus rather than discrimination overlooks the obvious: Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim’s sex is inextricably linked to the harasser’s decision to harass…[A] plausible view is that his conduct…was particularly humiliating in light of the fact that they had once been involved in an intimate romantic relationship. Thus, the court cannot conclude as a matter of law that his behavior was not sexual harassment.”
So, the plaintiff prevails on her sexual harassment claim? Well, not so fast. An employer can raise an affirmative defense that it exercised reasonable care to promptly prevent and correct any discriminatory harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
In this case, the employer took prompt remedial action after the plaintiff complained. It made the male professor attend one-on-one training with a legal expert to review the employer’s prohibitions on sexual harassment and retaliation. And although the employer had a complaint system in place (of which the plaintiff was aware), she declined to pursue an investigation. Therefore, the employer got summary judgment on the federal sexual harassment claims.
So, your takeaway is that you can’t always control lousy behavior at work. However, you can have prophylactic measures (like an employee handbook and a straightforward complaint procedure), take complaints of harassment seriously, and promptly prevent and correct any discriminatory harassing behavior. When you check those boxes, you avoid adverse jury verdicts — and often the lawsuit altogether.