Because of Sex.

Scales Of Justice.svg
…and because that title has a better ring than “Court Concludes Plaintiff Failed to Establish a Hostile Work Environment as a Matter of Law.”

[cue music]

Clickbait aside, there’s a point to today’s post. In a way, today’s lesson involves sex education.

(Enough already! Stop it, Eric. You’ve got ’em).

In Dole v. Town of Bethlehem (opinion here), the plaintiff alleged that her former employer fostered a sex-based hostile work environment, when it failed to stop the plaintiff’s co-worker, and former paramour, from harassing after they broke up. The harassment consisted of some nasty, mercurial voicemails, text messages and Facebook posts.

In defending the claim, defendant argued that the plaintiff had failed to make out a prima facie hostile work environment claim. Among other things, it argued that the plaintiff had not proven that she had been harassed because of her sex.

Well, that’s odd. I mean, isn’t it obvious that the genesis of post-breakup communications from a jilted ex-boyfriend to his former girlfriend is because he’s a man and she’s a woman? That means that those communication have to be because of her sex, right? Am I right, United States Magistrate Judge, Daniel J. Stewart?

Plaintiff’s claim fails because there is no evidence that Officer Sleurs harassed her on account of her sex rather than the end of their personal relationship.

Rut roh.

Notably, in similar cases, courts have found that harassment by a co-worker is not based on sex where it arises from a failed personal relationship….That is not to say that employees who are themselves the victims of harassment cannot invoke Title VII’s protection merely because of their previous relationship with the harasser…. [However,] if a jilted lover seeks retribution through actions that are not gender – or race-based, Title VII is not implicated.

The unwelcome voicemails, text messages, and Facebook posts express anger and frustration that Plaintiff had ended their relationship and refused to communicate with him. They also suggest that Officer Sleurs hoped they could resume the relationship. None of his communications, however, permit the inference that

his harassment of Plaintiff was motivated by her sex. The communications are facially neutral and there is no circumstantial basis for concluding that they were motivated by anything other than romantic frustration.

I was just foolin’. I knew it all along! No hostile work environment.

But, here’s the thing. The facts of this case, which involved off-the-clock communications between co-workers, could have zigged just as easily as they zagged. To its credit – and here’s the takeaway – when the plaintiff complained, the employer-defendant didn’t dismiss the complaint as being non-work-related. Instead, it took steps that were reasonably designed to end the complained-of behavior.

Especially with employee use of social media, gone are the days where the employer can safely firewall the workplace from taking any shrapnel. Indeed, regardless of when a harassing social media gets posted, if a co-worker reads it at work, it becomes a work problem and should be addressed accordingly.

Image Credit: CC BY-SA 3.0, Link
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