Wednesday, December 7, 2011

Pop quiz: is this sexual harassment?

Readers, it's pop quiz time. Do the following allegations support an allegation of a hostile work environment?
  • The Plaintiff’s manager stated that he had the best view in the house while walking behind plaintiff and another female employee.
  • During a dinner in 2009 with refractive account managers, the manager made a comment about placing his wife in different sexual positions to conceive a boy or girl.
  • The manager was present, and laughed, when one of his subordinates told a group of other employees that he did his best interviews with girls in bathing suits.
  • During a 2008 National Sales meeting, the Regional Director hugged a female employee receiving an award on stage and mimicked an erection or had an erection. The manager witnessed the incident and just laughed.
  • The Regional Director told plaintiff that she had nice legs and he had been watching her in her boots.
  • The Regional Director asked plaintiff whether she knew that people referred to another female employee as “tits on a stick.”
According to the court in Kepreos v. Alcon Laboratories (N.D. Ohio 9/21/11), the answer is no:
The Court concludes that these isolated incidents, considered together, are just not severe or pervasive enough such that a reasonable jury could conclude that defendants created a hostile work environment. Accepting all of plaintiff’s evidence, no factfinder could determine that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe and pervasive so as to alter plaintiff’s conditions of employment.
Surprised? Because hostile environment claims are largely subjective, they are tricky to predict. One person’s (or judge’s, or jury’s) hostile environment is another’s isolated incident or workplace trifle. In addition, other facts in a case might sway the judge or jury to a different conclusion. For example, Alcon fired Kepreos because she had embezzled money via her corporate credit card. Do you think her dishonesty motivated the conclusion that her work environment wasn’t sexually hostile?
You might be thinking, if these claims are so unpredictable, how do you defend against them? The answer is prevention. Have a strong anti-harassment policy. Train all of your employees—from the CEO on down to the lowest paid hourly worker—on what the policy means and how it works. Give the policy teeth by consistently enforcing it, both by investigating all complaints and by taking appropriate remedial measures when needed. Create an environment where employees know they can complain without fear of retaliation and with confidence that their complaints will be taken seriously. By following these few steps, you will limit your opportunities to find your company on the receiving end of a tricky harassment lawsuit.