To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior that would make the plaintiff (and a reasonable person in the plaintiff’s shoes) believe that the working environment are hostile or abusive.
Wait, I’m forgetting something. Oh yeah, the complained-of conduct must only be on account of the plaintiff’s gender. Seems simple enough, right? No sex-based conduct. No sexual harassment. After the break, a recent example that highlights this important element.
Last week, the Superior Court of NJ, Appellate Division decided Miceli v. Lakeland Automotive Corp. Ms. Miceli was a salesperson for Lakeland for less than a year until she voluntarily quit her job. When asked by the Court do describe the “sexual harassment” that she had suffered, Ms. Micelli described the quintessential equal-opportunity jerk:
The Court: And what would [the harasser] say?
Miceli: He would be very abusive.
The Court: Like what, what would he say, you’re a lousy sales person or what?
Miceli: No, he never said anything like that, but if I had done something wrong, he didn’t take me into his office and — and speak to me about it. He would just openly just blow off steam right in front of everyone else.
The Court: Like what? I mean he didn’t literally blow off steam, he made statements. What would he say?
Miceli: He made statements that, you know you’re not supposed to do these things, we can get fined $500 for this. He said, you know, this is not the way to do it. Instead, just take me into the office and tell me what I did wrong
Sex must motivate rude conduct to be actionable as sexual harassment.
The lower court held the Ms. Micelli’s sexual-harassment case failed because the behavior of which she complained, albeit boorish and impolite, was not predicated upon sexist conduct. The appeals court agreed that the co-worker’s conduct was “rude and obnoxious” but not motivated by gender. Case dismissed.
Lessons for employers.
- Provide periodic anti-harassment training to employees and managers. Make sure that they know how to report and address incidents that may constitute sexual harassment or discrimination. The training should also help employees and managers distinguish between potentially illegal behavior from rude conduct. (Both should be reported, but only one is actionable). In New Jersey, an employer can actually lose a case if it fails to conduct periodic training sessions. (If you’re looking for a trainer — subject to the standard disclaimer — hollaback).
- Take all complaints seriously and don’t make snap judgments. Managers should be trained to accept complaints and forward them to HR, or a person in charge of investigating employee complaints. Generally, those managers who receive complaints should not be determining whether they have merit or constitute unlawful behavior.
- Follow through on promised progressive discipline. Ms. Micelli reported the same co-worker to management three times. Each time, the co-worker was told that the next incident would result in termination. Never happened. Instead, I imagine that Ms. Micelli felt that her employer was not taking her complaints seriously and condoning the behavior — albeit not illegal — to which she was subjected. That translates into a lack of respect. And employees who do not respect their employer are the most likely to sue — even if the complaint lacks merit.
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