HR-101: Did an NFL fan create a hostile work environment by throwing a sex toy on the field?

At halftime of my seven-year-old’s soccer game, I was perusing my slow weekend RSS feed. Of the seven Feedly items, one stood out: a “news” from Deadspin (NSFW) about a fan who hit the five yard line with a phallus toss (video is NSFW) during the third quarter of the National Football League between the Buffalo Bills and the New England Patriots. Here’s another angle. (Still NSFW).

And, it got me thinking…

This could make for a good HR compliance lesson. Trust me.

What is a hostile work environment?

From time to time I get calls from folks asking if they have a good hostile work environment claim. And mostly, what I end up fielding are “my-boss-is-a-jerk hostile work environment” complaints. That won’t cut it.

Rather, a real hostile work environment requires that a victim establish four elements:

1. The victim’s protected class (e.g., race, religion, sex, etc.) motivated the bad behavior;
2. The behavior must be pervasive (i.e., it happens a lot) or severe (really, really bad);
3. The behavior must offend the victim; and
4. The behavior must offend a reasonable person in the victim’s shoes.

Plus, where the harasser is a non-supervisor, the victim must also demonstrate that the employer knew or should have known of the harassment and failed to take prompt remedial action.

Can a visitor create a hostile work environment?

Sure.

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Don’t believe me? Check out this EEOC page on sexual harassment.

What if the fake-penis tosser was a guy?

Same-sex harassment is unlawful.

So a fan throwing a fake penis on the field must be creating a hostile work environment for the football players, right?

Yeah, no.

Let’s go through the test:

1. The victim’s protected class (e.g., race, religion, sex, etc.) motivated the bad behavior
   Although a fan tossed a sex toy, a player-victim would have a tough time showing that his gender motivated the toss. If the football players were women, rather than men, I suspect that the sex toy would still have found its way to the five-yard line.
2. The behavior must be pervasive (i.e., it happens a lot) or severe (really, really bad)
   Well, it only happened one; so much for pervasive. And, while I don’t have a case on point, I’m going out on a limb here by concluding that no court is going to recognize a single, poorly-aimed,  fake-penis toss as severe enough to create a hostile work environment.
3. The behavior must offend the victim
   I haven’t heard about anyone complaining.
4. The behavior must offend a reasonable person in the victim’s shoes
   Context matters. I can only imagine some of the stuff that players tell each other in the heat of battle to gain a psychological advantage. Then you have Pats tight end Rob Gronkowski basking in the double entendre of scoring his 69th touchdown and giving his mom a shout out.

Now, let’s assume that a player could establish the four elements above. Because the culprit was a fan, that victim still must also demonstrate that the employer knew or should have known of the harassment and failed to take prompt remedial action.

Certainly, the Bills knew or should have know about the toss. It was in plain sight, televised, reported, etc.

In terms of remedial measures, since this person is taking credit on Twitter for the toss, presumably the Buffalo Bills organization can revoke his season ticket privileges. Or, if he’s not a season ticket holder, ban him from the games. Otherwise, the Bills could also implement heightened screening procedures and warn fans that throwing fake penises at the field won’t be tolerated henceforth.

Something like that. Or just treat this as a one-off and why am I still typing.

There you have it. Nearly a 700-word trench-HR lesson on professional football, dildos and hostile work environments. Now, if you’ll excuse me, I’ll be at the mailbox waiting for my Pulitzer to arrive.

I’m pretty sure that’s how it works.