Tuesday, October 15, 2019

Poor taste does not amount to prohibited sexual harassment.


I once made the mistake of watching an episode of Orange is the New Black on an airplane. The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.

Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workers’ choice of television shows in the break room created a hostile work environment.

The show at issue—Luke Cage, which included some brief nudity. At the plaintiff’s request (and a brief argument) her co-workers changed shows. This incident repeated again later that day, with the co-workers again changing shows at the plaintiff’s request. It was undisputed that the show in question contained two scenes with nudity, each lasting less than a minute.

Ms. Sims reported the incident to management, who assured her that the break-room television would no longer be able to connect to steaming services. Management also counseled the offending employees on the employer’s respectful workplace policies and its prohibition against retaliation.

The district court had little difficulty dismissing Sims’ hostile work environment claim.

First, her exposure to two brief scenes of nudity on a television in the drivers’ lounge cannot reasonably be perceived as hostile or abusive. … Considering all of the circumstances in the light most favorable to Sims, … she was simply not subject to severe or pervasive harassment. 
And even if the brief incidents at issue here could somehow arise to objectively serious or pervasive harassment, Sims’s claim fails because there is no indication that she was subject to something to which male drivers were not exposed. The TV was on for all drivers, male and female, to see. The brief nude scenes were not directed at Sims because she was a female. Poor taste does not amount to prohibited sexual harassment. 
And finally, … a Title VII plaintiff must also establish that her employer failed to take prompt remedial action when informed of the allegedly harassing behavior. Sims cannot make this showing here. The evidence, in fact, demonstrates the opposite: to a person, Sims’s managers responded to her complaints, attempted to comfort her, and took immediate action.

One employee’s television show is another’s harassment. And while this court almost certainly correctly concluded that a brief minute of nudity on a screen does not rise to the level of a hostile work environment, it’s nevertheless not a bad idea to take a stand against all nudity in the workplace so that you don’t end up in court making these arguments.

* Photo by Raychan on Unsplash
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