Thursday, June 21, 2012

6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.