Real and Spectacular! A true Seinfeld-ian claim of sexual harassment

Before law school was even on the radar for me, I knew that coitus on office furniture was a workplace no-no. And ignorance is not a defense.

But, maybe Seinfeld isn’t a thing in Indiana.

You see, Connie Orton-Bell worked at a maximum security prison in Indiana. One day, she learned that night-shift employees were having sex on her desk.

The investigator who discovered the prison procreation, told Ms. Orton-Bell, “he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning.”

(I recommend Endust. It’s no-wax formula removes dust, soil and surface wax buildup).

The prison superintendent too learned of the nighttime nooky and said that, “as long as inmates were not involved, he was not concerned either.”

And then there’s Ms. Orton-Bell herself.

Immediately after the superintendent shared his thoughts on sexy-time in the slammer, he discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk).

And, for that, Ms. Orton-Bell lost her job.

Both she and the Major separately appealed their terminations because, apparently, the Indiana State Corrections System is bacchanalia, so, why should they lose their jobs?

*** give me a sec, my head is spinning ***

Well, the prison cut a deal with the Major. He testified against Orton-Bell and yadda, yadda, yadda, she sued alleging, among other things, a hostile work environment based primarily on the night shift constantly using her desk as a giant Petri-Dish experiment.

No sexual harassment because the desk sex wasn’t based on…sex.

Now, I was ready to predict that the Seventh Circuit Court of Appeals would have denied the claim (in this opinion) by concluding that a reasonable person in Ms. Orton-Bell’s shoes would not have been offended by the sex on a desk.

However, the court went in a different direction in dismissing Ms. Orton-Bell’s hostile work environment claim; namely, the lack of evidence that Ms. Orton-Bell’s gender caused the harassment:

The notion that night-shift staff had sex on her desk because she was a woman is pure speculation. The only evidence of any motive held by the night-shift staff (who have not been identified) for having sex on her desk is that her office had curtains and was in a lockable suite near the infirmary, but accessible with the master key that a night-shift lieutenant would have.

* * *

The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell’s desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner.

So, what can we take away from this post…other than our appetites?

1. No sex on desks at work.
2. No sex at work.
3. No sex on desks. (Splinters)

UPDATE: It appears that I’m not the only blogger to put a tv-spin on this sex romp. So, for more on this case and, what I trust are far keener legal insights, check out Jon Hyman‘s post “Orange is the new sexual harassment“at the Ohio Employer’s Law Blog.

Friends, it’s hard-hitting Pulitzer-Prize commentary like this that won me the 2013 ABA Blawg 100 Amici for Labor and Employment. Hey, don’t blame me. You voted for it, suckers. Just be sure to nominate this ridiculous blog for the ABA Blawg 100 Amici again.