Sleep with me, or you’re fired!

Sex sells.

My most popular posts at The Employer Handbook — that’s based on you reading them (you’re all sick I tells ya, sick!!! And remember, I’m logging IP addresses) — generally involve some element of sexual behavior. You have the Brazilian self-stimulator. Actually, make that sexual behaviour — there’s the Australian hotel sex romp

One of my readers asked if I’d heard about the recent sexual harassment lawsuit in Utah (the home of sex in a supply closet), in which a woman alleged, among other things, that her supervisor distributed a work schedule that included included “Mini-skirt Monday,” “Tube-top Tuesday,” “Wet T-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.” Come on, now. You know me! Just this week, I read five articles (hereherehereherehere) about it. You can find 23 more articles about “No bra Thursday” here.

Sexual Harassment“Guess my high score in Leisure Suit Larry.”

Then there’s the NY Post story (naturally) about a 23-year-old lesbian who claims that seven staff members in her real estate office groped, slapped, flashed, fondled and subjected her to racial abuse and death threats. One of the staffers allegedly offered her $60 for oral sex and told her all Puerto Rican girls are good at it.

Me? I like writing about these cases because it’s a good excuse to use stock sexual harassment photos from Google Images — like the one on the right, which, given the size of the shoulder pads in the lady’s jacket and the dimensions of that desktop computer — no doubt housing a 5.25 inch floppy disk drive — is a screencap from L.A. Law.

How about one more sexual harassment case for ya? This time, the Fourth Circuit Court of Appeals gets in on the act and reverses summary judgment in favor of an employer where the plaintiff alleged sexual harassment and retaliation when her boss forcibly kissed her, fondled her leg, propositioned her, asked her sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her (on the day she complained). 

More on this and, of course, lessons for employers, after the jump…

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The facts of this of this case are particularly raunchy and you can read them for yourself in the copy of the decision found here.

The behavior alleged was enough to potentially create a hostile work environment.

As you know from my “pottymouths” post two weeks ago, to prevail on a sexual harassment claim, a plaintiff must show that the alleged conduct offended her. A plaintiff must also establish that the conduct at issue was severe or pervasive. In the instant case, the plaintiff alleged that she had been subjected to at least 12 incidents over just 4 months, some of which involved forced physical contact. The Fourth Circuit found that these incidents could be construed as both severe and pervasive, noting that they went beyond “simple teasing and offhand comments” and, instead, were numerous and explicit.

The plaintiff could potentially prevail on her quid pro quo discrimination claim.

To prove quid pro quo sexual harassment, a plaintiff must demonstrate five elements:

  1. The harassment complained of was based upon sex.
  2. The employee was subject to unwelcome sexual harassment.
  3. The acceptance or rejection of the harassment must be conditioned upon receiving a job benefit (e.g., “sleep with me and I’ll promote you”) or cause a tangible job detriment (e.g., “sleep with me or you’re fired”) to create liability. 
  4. The employee’s reaction to the harassment affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment. 
  5. The employer knew or should have known of the harassment and took no effective remedial action.

The fifth element is automatically met when the harassment is alleged to have been perpetrated by a supervisor, as it is here. Obviously, a firing will satisfy the fourth element above. And the other elements were met. However, the record was less than clear that the defendants, which claimed to have fired the plaintiff for performance reasons, truly would have fired her but for her complaint. Accordingly, the Fourth Circuit reversed judgment in favor of the defendants, preferring that a jury make those determinations.

The plaintiff has a triable retaliation claim too.

As you all know from reading the blog last week (here and here), there are three elements to a retaliation claim. A plaintiff must prove that:

  1. she engaged in protected opposition to discrimination;
  2. she suffered a materially adverse action; and
  3. there is a causal connection between the protected activity and the adverse employment action.

In this case, the parties disagreed about whether the plaintiff’s written complaint satisfied the first element because it mentioned “harassment,” but not “sexual harassment.” However, the complaint also contained the words “unethical,” “degrading,” and “dehumanizing.” And surely, the harasser, who allegedly fired the plaintiff, would have known of his own conduct.

Three takeaways for employers.

  1. Provide respect in the workplace training to both employees and supervisors. It’s great to educate employees how to identify and report unlawful harassment in the workplace. But don’t forget to remind employees and supervisors about the consequences of unlawfully harassing a co-worker. Discipline, up to and including, termination may be just the start. In some jurisdictions, like in Pennsylvania and New Jersey, an individual harasser may be held personally liable to the victim under state law. At best, the harasser will have to hire an attorney. And no attorney is going to handle that case pro bono.
  2. Have zero tolerance for quid pro quo harassment. It is rare to encounter quid pro quo harassment in the workplace. Because it’s savagery! So, when I hear about it, I have one response to employers: fire that harasser immediately. IMHO: there are no second chances for that kind of behavior.
  3. Train again. Because new employees get and hired, sometimes people don’t pay attention the first time, and you can never be too safe.
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