We’re talking full frontal here.
In these Summer months, it’s easy to relax a bit. For example, last weekend I spent Sunday morning sleeping off a fun Saturday night in the shade of a tree on my front lawn while my four kids played slip-and-slide
in traffic on the front lawn too. Although, I did catch my youngest two cooling off in drinking out of puddles on the sidewalk.
Folks, let me give you a little free Friday HR pro tip:
If a female employee complains to a female manager that another male manager is sexually harassing her, it’s not ok to for the female manager to respond thusly,
“He’s a guy and you work with guys. Ignore it and smile.”
Geez! What’s gotten into me this week? Even by The Employer Handbook editorial standards, which are lower than Title VII’s religious accommodation undue hardship test.
[I’ll be here all week. Sorry.]
As I resist every urge to cheapen this further by resorting to silly puns and other double entendre, allow me to set the stage for you: Continue reading
What else is there to blog about after reading a federal court opinion about Yolo (You Only Live Once) and sexual harassment?
Geez. Last night, I could have peed plutonium while flaming monkeys sprang forth from my word hole, and I still would have blogged Yolo.
More on Yolo after the jump…
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The opinion contains the words “fingered,” “genital area,” and “sexual assault,” plus an allegation that the assailant tried to hit the plaintiff with her car in the mall parking lot. But, the court concluded that there was no sexual harassment, because none of these events “affected the conditions of her employment.”
** napalms Washington-bound resume; shreds ashes **
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?
- No sex on desks at work.
- No sex at work.
- 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.
I’m often asked, “Eric, where do you find this stuff?”
Why TMZ, of course. Break ’em off TMZ:
“Whitney Wolfe claims in a new lawsuit — obtained by TMZ — she was mercilessly brutalized by the other execs who wanted to remove her title because no one would take a site like Tinder seriously if they knew it was founded by a 24-year-old chick.
Wolfe says one of the execs made a romantic play for her and she eventually dated him … but it didn’t end well and she claims he then waged a harassment campaign against her.
She says the guy also texted her when he found out she was interested in someone else, saying, ‘I will s**t on him in life. He can enjoy my leftovers.’ She says she was also talking to some Muslim men and he texted her, ‘You prefer to social climb middle-aged Muslim pigs that stand for nothing.’
And Wolfe says the guy referred to one of her girlfriends as ‘a liberal, lying desperate slut.'”
For those who don’t know, Tinder describes itself (here) as “the fun way to connect with new and interesting people around you.” More bluntly, TMZ describes Tinder as “an online dating app best known for hooking people up who want to bang.”
It is against this backdrop that I offer a takeaway. To establish sexual harassment, one must show that, among other things, not only was he/she offended, but that a reasonable person in their shoes would have been offended by the same workplace behavior. When measuring what is offensive, the nature of the workplace matters. Indeed, what may be offensive in a law firm environment, may not be, say, in a writing meeting on the set of the television show Friends.
Still, there are limits. And just because someone works at Tinder, which apparently helps users bang, doesn’t mean that she consents to being the target of nasty, insensitive comments.
So, kindly remind your employees that, no matter the environment, sexual harassment won’t fly.