When offering respect in the workplace training for employees and supervisors, I emphasize that an employee who laughs at sex jokes in the workplace is the same employee who may later sue for sexual harassment.
Like Little Ladner did.
(Yes, Little Ladner)
More after the jump…
I’ve been searching for gold recently. So, I knew I was on to something good when I started reading this opinion last week, and wasn’t sure whether what I was reading was a sexual harassment case or a porno script.
What can I say? I like the plots.
Folks, if you click through, I promise you a great read after the jump…
* * *
Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It’s been that way since 2010.
There are three essential elements of a retaliation claim: (1) protected activity — opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.
This post focuses on “opposition to discrimination.” Specifically, is withdrawing from what one perceives to be a sexual advance by one’s employer opposition to discrimination and, thus, a protected activity?
The answer after the jump…
Or sexually harass your co-workers.
Unless, of course, you consider my working Hollywood manuscript: “An EEOC Complaint Is Your Free Pass to Sexually Harass.” I know, the title needs work, but with C. Thomas Howell, Tawny Kitaen real star power and a producer.
** Immediately regrets sixth shot of Drambuie with breakfast **
There’s a point to all of this, and some employer tips too, after the jump…
* * *
Duh, right?
Still, a federal appellate court recently reminded us (here) that, indeed, bad things happen when, every week for several months, a male supervisor tells his female subordinate that her husband is “not taking care of [her] in bed.”
Though not threatening, they were more than merely offensive. For a male to say to a female employee under his supervision that her husband was “not taking care of [her] in bed” is the sort of remark that can readily be found to be a solicitation for sexual relations coupled with a claim of sexual prowess and can just as readily be found to have been perceived as such by the female employee. The weekly repetition of such a remark over several weeks only served to reenforce its offensive meaning and to make sexual intimidation, ridicule, and insult a pervasive part of Desardouin’s workplace, effectively changing the terms and conditions of her employment….The allegations of repeated solicitation of sexual relations in a vulgar and humiliating manner suffice to warrant a trial.
The original working title for the post was “The Third Circuit takes a deuce on my ‘Pottymouths’ post.” I meant it in the figurative sense. Otherwise, I would be at a loss for words with IT.
More so than usual…
{Napalms browser history}
But, fortunately, good taste and high morals — we’re all about that here at the Handbook {cough} {fart} — prevailed.
Click through to see what a federal appellate court had to say about whether a female plaintiff with an apparent propensity for the cursey-cursey may successfully pursue her sexual-harassment claims.
* * *
I assure you that what inspired this post had nothing to do with the facts of the case; namely:
- the female plaintiff claiming that her female-lawyer boss groped her; or
- the plantiff’s Facebook posts about pole-dancing and calling her breasts “milk factories”.
That’s all purely coincidental. Indeed, it sounds like something out of Costanza’s desk drawer.
Actually, I’m posting this to share a very well-reasoned social-media-discovery judicial opinion that is a big win for employers. You’ll see what I mean after the jump…
When an employer is faced with a sexual-harassment lawsuit, one of its best defenses is that the company took reasonable care (e.g., policy, training) to prevent sexual harassment (and then addressed complaints in a manner that is reasonably designed to end the sexual harassment)
In EEOC v. Spud Seller (opinion here), the employer had an anti-harassment policy that detailed what constitutes sexual harassment and how to report it. Further, it specifically advised employees that, “You can feel state that your complaint will receive immediate attention and if the facts support your complaint, the offender will be disciplined.”
Sounds good to me.
You’ve got an anti-harassment policy. All managers and employees have copies and you just completed training on the policy for your entire workforce.
Sweet!
But is your policy bulletproof? I mean really bulletproof?
And if an employee claims that a harasser lurks in your workplace, if sued, will a court agree that the steps you have taken were reasonably designed to end the harassment?
Just how confident are you?
After the jump, some not so obvious pitfalls from a recent federal-appellate-court decision and six ways (5 from the court; 1 from me) to help you stay legal and out of the courtroom.
Courts analyzing anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act mandate that employers educate employees about discrimination in the workplace and provide a way for them to complain. Then, once made aware of discrimination in the workplace, the employer must take steps that are reasonably designed to end the discrimination. That could mean anything from a verbal warning up to termination of employment. That decision is up to the employer.
In Phila. Housing Authority v. AFSCME, after investigating a complaint of sexual harassment, a unionized employer with a zero-tolerance policy for sexual harassment fired the alleged harasser. The union subsequently filed a grievance that eventually led to arbitration, at which time the arbitrator deemed the alleged harasser’s behavior to be “lewd, lascivious and extraordinarily perverse.” Notwithstanding, the arbitrator concluded that a verbal warning would have sufficed, rather than termination, and ordered the alleged harasser reinstated and made whole.
On appeal, the PA Supreme Court blasted the arbitrator’s decision, while emphasizing the public policy against unlawful harassment in the workplace.
The Employer Handbook Blog