You won’t find this one on the SAT’s. Continue reading
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.
Welcome to Alabama, where they see your one-grope rule and raise you two grabs of the derriere.
Why? Because, according to this recent federal court opinion, the average female employee would not find getting her ass grabbed twice by a male supervisor to be offensive.
Now remember, that for a woman to prove sexual harassment, she must show five things:
- she was subjected to harassment because she was a woman
- the harassment was severe or pervasive
- she was offended
- a reasonable woman in her shoes would also have been offended
- there is a basis for holding the employer liable
Usually in cases involving discrete behavior (one or two events of harassment), the court focuses on the second element to say that the harassment was neither severe nor pervasive. In Stallworth v. Guyoung Tech USA, Inc., Ms. Stallworth claimed that a VP/Supervisor grabbed her butt twice in the same day. Well, not only did Judge Kristi DuBose find that this behavior was neither severe nor pervasive, but she concluded that the offense Ms. Stallworth took to this conduct showed that she had a thin skin:
“Arguably, Cho touching Stallworth’s butt in front of her co-workers may have been humiliating. However, the June 28, 2012 touching incident and the incident where Stallworth saw Cho hit himself in the head and make an ugly face toward her on July 10, 2012, are not conduct that was frequent, severe, or physically threatening, or of a nature that would unreasonably interfere with Stallworth’s work performance.”
Although the record indicated that Cho had given a thumbs up the second time he grabbed the plaintiff’s butt, and that he had allegedly touched three other female employees on the butt, this was not enough to sway the court that a woman in Stallworth’s shoes would have been offended at getting her butt grabbed.
I’m at a loss as to how even one butt grab from a male supervisor wouldn’t be offensive to the average female employee, but two?!?
So, here’s my advice: Unless you practice law in Alabama, disregard this opinion entirely. Do not assume that there is a two-butt-grab rule that will allow a company to get summary judgment in a sexual harassment case. Instead, don’t condone even a single grab.
We’ve talked a fair amount about sexual stereotyping at the ole Handbook.
Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.
And of course, we have my “Ravishing Rick Rude” theory of same-sex harassment, which a federal appellate court crapped all over.
And on Monday, while some of you were out celebrating Cinco de Mayo — I’m a Siete de Mayo guy myself, so hold my calls — a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.
Put another way, the plaintiff claimed that his failure to laugh at his co-worker’s infantile penis jokes and other oversexed comments, in conformity with how a “real man” should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.
Well, are you thinking what I’m thinking?
Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.
Why did the Defendants argue that, because the harasser allegedly told plaintiff “you gotta get it in,” he was “attempting to encourage and support plaintiff, not demean or tease him?”
(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)
How is it that the plaintiff here is being sexually harassed “because of” his gender — especially if the co-worker makes the similar sexual comments to other female co-workers?
Ah yes, the old equal-opportunity-pervert defense. Perfectly viable.
But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker’s comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.
Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.
On a more complete record, the plaintiff’s case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.
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