Thursday, February 20, 2020

Just because an employer wins summary judgment doesn’t mean you should emulate its behavior

Jennifer Paskert worked as a sales associate for Auto$mart, a “buy here, pay here” used car dealership located in Spirit Lake, Iowa. During her six months of employment, she claimed her manager, Bret Burns, sexually harassed her. Her allegations included overhearing Burns tells other than he “never should have hired a woman” and wondering aloud if he could make Paskert cry. Burns also bragged at work about his sexual conquests. One on occasion he attempted to rub Paskert’s shoulders told her he was going to give her a hug. On another occasion, after Paskert had criticized how Burns treated women, Burns replied, “Oh, if you weren’t married and I wasn’t married, I could have you … You’d be mine … I’m a closer.”

Ultimately, Auto$mart fired Paskert for “insubordination.” She then filed suit for sexual harassment, among other claims.

The 8th Circuit Court of Appeals affirmed the dismissal of Paskert’s harassment claim.

Burns’s alleged behavior, while certainly reprehensible and improper, was not so severe or pervasive as to alter the terms and conditions of Paskert’s employment.… Paskert only alleges one instance of unwelcome physical contact, one or two statements where Burns stated he could “have Paskert,” and several statements about how he never should have hired a female and wanted to make Paskert cry.… Assuming Paskert’s allegations are true, Auto Smart and Burns should both be embarrassed and ashamed for how they treated her. Nevertheless, we may only ask whether their behavior meets the severe or pervasive standard applied by this circuit, and it does not.

Just because an employer is fortunate enough to win a lawsuit does not mean that you should model its behavior. “Reprehensible and improper” might not rise to the level of “severe or pervasive,” but it also doesn’t make it right.

* Photo by Cristian Newman on Unsplash