Sexting, flirting, but no sexual harassment here.

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior based on the plaintiff’s sex. Further, not only would an objective person have to find the behavior offensive, but the plaintiff must be offended as well.

Usually, when a plaintiff claims sexual harassment, a court takes for granted that conduct at issue offended the plaintiff.

But, I just read about a case that bucked the trend. 

More on this wacky case, and some workplace lessons for you guys…after the jump…

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In Bowling v. Shinseki, the female plaintiff exchanged a series of text messages with a male co-worker, which the Court described as “of a mixed work and sexual nature.” The plaintiff alleged that this co-worker inquired into her sex life, asking personal and sexually explicit questions. 

Sounds like inappropriate workplace behavior to me, but….

The plaintiff considered the messaging to be part of a “certain amount of banter that goes into these professions that is not a big deal for me and for several people.” Further, she viewed it as “innocent flirting” and “was not too bothered by the comments because [she] really just didn’t care and [] was not offended.”

After the plaintiff testified at deposition that she was not offended, the Court had no problem dismissing the plaintiff’s hostile work environment claim:

Based on the foregoing, it is abundantly clear to the Court that Plaintiff did not hold a reasonable, good faith belief that she was subjected to severe or pervasive conduct that would alter the terms and conditions of her employment.

As it turns out, the only reason that the plaintiff complained about the text messages to her employer was because the co-worker’s wife found out about the texts between the plaintiff and her husband and, subsequently, threatened the plaintiff.

When I conduct respect-in-the-workplace training for employees and supervisors, I often use a case like this as an example as a reason not to engage in such behavior. That is, two people may engage in conduct that neither find offensive at the time. However, circumstances may change (e.g., a falling out, a termination). And those changed circumstances may lead to one of the two participants (conveniently) reconsidering whether the conduct offended them.

So, rather than leave that to chance, remind your employees that it’s better not to engage in such questionable behavior at all.