Apparently, sex in a supply closet is not sexual harassment

August 9, 2011
By Eric B. Meyer on August 9, 2011 7:00 AM | | Comments

'There's Even a Drawer for the Cat' photo (c) 2006, Peyri Herrera - license: http://creativecommons.org/licenses/by-nd/2.0/At least that's what a federal court in Utah opined.

I promise that this is not a prurient post gratuitously conceived to drive internet traffic to The Employer Handbook.

And this case has nothing directly to do with Pennsylvania, New Jersey or Delaware employers

(Ok, that last line was shameless. Google, please do not index this post).

Oh, what the heck, index away. After the jump, I'll even throw in some good employer takeaways for all employers, including those in Pennsylvania, New Jersey and Delaware.

Darn it. I did it again...

* * *

George Costanza couldn't have made up better facts.

Here they are, as recited in the court's opinion in Zimpfer v. Aramark Management Services:

On December 26, 2008, Plaintiff and his co-worker, Mr. Derbidge, went to the Janitorial Office/Maintenance Supply Closet to obtain garbage bags. When they arrived at the closet, however, they found that the closet door was locked--which was allegedly uncustomary as it was to remain unlocked during business hours. Mr. Derbidge unlocked the door with his key and, much to Plaintiff's and his surprise, found the housekeeping supervisor and one of the housekeeping workers engaged in sexual activity. The housekeeping supervisor allegedly slammed the door shut and, around two minutes later, re-opened the door and allowed Plaintiff and Mr. Derbidge to enter the closet and obtain garbage bags.
Plaintiff alleges that he and Mr. Derbidge later reported the incident to the Facility Manager, Tim Jorgensen, but that Mr. Jorgensen never contacted Plaintiff or any other employee to further investigate the incident and took no action against either the housekeeping supervisor or the housekeeping worker. Plaintiff later reported Mr. Jorgensen's handling of the incident to ARAMARK's Human Resources department.
Plaintiff alleges that months later, ARAMARK retaliated against him for making these two complaints when: (1) Mr. Jorgensen's assistant asked Plaintiff for a valid driver's license; (2) Mr. Jorgensen informed Plaintiff that he needed a valid driver's license; and (3) ARAMARK terminated Plaintiff's employment for falsifying his employment application and failing to provide a copy of a valid driver's license.

***Before I go any further, what's more odd? That it took two whole minutes after the housekeeping supervisor slammed the door for him to re-open it? Or the plaintiff waiting patiently for those two whole minutes for the door to open? You decide.***

Anyway, after his firing, the Plaintiff filed suit on December 14, 2010, alleging a single cause of action for unlawful retaliatory discharge under Title VII.


Plaintiff could not have reasonably believed that ARAMARK broke the law.

There are three elements to a retaliation claim. A plaintiff must prove that:

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

To meet the first element, the plaintiff must have an objectively reasonable belief that his employer has engaged in an unlawful employment practice (e.g., one employee sexually harassed another). That is, would a reasonable person standing in the plaintiff's shoes also believe that the company had violated the law.

On these facts, the Utah court didn't think so.

Likening the facts here to a Kansas case in which a former school janitor allegedly observed a movie containing sexual activity playing in a teacher's classroom, and distinguishing the ARAMARK case from a Tenth Circuit decision involving a "cucumber in a cap", the Utah court here found that no reasonable person who interrupts a live sex act in a supply closet could believe that the incident was sufficiently severe to support a claim of sexual harassment.

Accordingly, the Utah Court dismissed the plaintiff's retaliation claim.

Takeaways for employers:

  1. A single incident is almost never enough to constitute a "hostile work environment". Most sexual harassment cases are won because the plaintiff can show that the harasser's behavior was pervasive (rather than severe). Although, I would argue that if the individuals in the supply closet were not involved in consensual sex (which is implied in the Utah case), a court would be remiss to dismiss the case at such an early stage of the proceedings.
  2. Companies should investigate complaints of unlawful harassment/discrimination. Don't let a single incident become ten incidents. Take all complaints seriously and nip bad behavior in the bud.
  3. When training on harassment in the workplace, offer concrete examples, not legalese. It's ok to educate employees on what the law deems unlawful. It's better, however, to buttress that with specific examples of behavior that courts (and, more importantly, your business) will not tolerate.