Monday, October 26, 2009

Dirty jokes on sex harassment plaintiff’s computer ruled in play

Harassment cases are often he said/she said. How does one go about proving, for example, that a plaintiff isn’t as offended about the her boss’s sexual comments and innuendo as she says she is? In Seybert v. The International Group (E.D. Pa. 10/13/09) [PDF], the employer searched the plaintiff’s workplace computer for evidence of her own participation in sexual banter.

Susan Seybert claimed a sexually hostile work environment based on the following conduct:

  • Her supervisor, Brett Marchand, stared at her breasts on two separate occasions.
  • Marchand comment to her, regarding the dessert at a work-sponsored dinner, “I heard it’s really good if you go down deep, into the chocolate, with your berry.”
  • Marchand berated and yelled at her on a number of occasions, ignored her in a manner that made it difficult for her to do her job correctly, and gave her a bad performance review.

In support of its defense of the harassment claim, ICI argued that Seybert wasn’t subjectively offended by the boorish conduct, and sought to introduce the following intra-office emails from Seybert’s work computer:

Stories, jokes, photographs, cartoons and the like, along with occasional commentary from Mrs. Seybert or others along the specific email chain, using sexual words, metaphors, puns, double entendres, and other innuendo.

Over Seybert’s objection, the trial court allowed the emails to be considered at trial.

Here, the emails with sexual content involve the same general type of humor as Mr. Marchand’s comment at the Recognition Dinner - a humor rooted in sexual innuendo and supposed euphemisms. For instance, Mr. Marchand’s alleged comment about going “down deep into the chocolate [dessert] with your berry” presumably could be likened to Exhibit No. 61, which contains a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, “Just Roll Me Over Darlin … ‘cause I’m Layin On Yer Present.” … Accordingly, IGI is entitled to pursue the argument that the emails are relevant to Mrs. Seybert’s possible appreciation of this type of humor, and specifically, whether she was subjectively offended by Mr. Marchand’s comment….

Just as the email exchanges are relevant to show whether Mrs. Seybert was subjectively offended by Mr. Marchand’s “berry” comment, they are also relevant to the issue of whether Mrs. Seybert experienced emotional distress as a result of the comment. This is because, at the most basic level, the email exchanges show the effect of the “berry” comment on Mrs. Seybert’s mental state - that is, whether the comment made her distressed, offended, or something else.

As technology continues to evolve and become more entrenched in every aspect of the workplace, more and more employment cases turn on an email, text message, or other piece of electronic evidence. Most times, it seems that employers have these media used against them as proof of the alleged discrimination or other misconduct, It’s refreshing, for a change, to see these tools used by an employer to defend itself.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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