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by Mindy Chapman, Esq.

What’s the difference between a friendly glance and a sexual stare? A recent court ruling shows that sexual harassment is in the eye of the beholder—and supervisors better not roll their eyes if they witness it …

Case in Point: Odessa Babbitt was hired as a room service attendant at a Westin hotel in Rhode Island. The collective-bargaining agreement said employees served a 90-day probationary period before joining the union.

Babbitt claimed that from day one she was subjected to constant staring and ogling from male co-workers. She said the men would linger around her work area for the sole purpose of staring at her. Babbitt said the behavior sometimes escalated to whistling and vulgar comments about her body.

Babbitt claimed the behavior even occurred in front of her supervisor, who responded by merely “rolling her eyes” and doing nothing.

For the first 89 days, she didn’t report the harassment. The reason: Babbitt feared she’d be fired if she complained during her probationary period. An HR manager had told her she could be fired for any reason until she was officially in the union.

Meanwhile, supervisors were building a file on Babbitt. In her first six weeks, she’d been disciplined three times—twice for tardiness and once for failing to follow a manager’s instructions. As a result, managers discussed termination.

On her 90th day, Babbitt broke her silence. She allegedly complained to her supervisor about harassment. A few hours later, she was called into her boss’s office and terminated. Her boss allegedly said, “We have to let you go. We can’t have, like, this harassment stuff going on here.”

Babbitt sued for sexual harassment and retaliation. Westin denied any misconduct, saying she was fired for performance reasons. Plus, it argued that Babbitt presented evidence of only isolated instances of “intersexual flirtation.”

The result: The court rejected Westin’s bid for summary judgment and, instead, sent the case to a jury trial. The court said that while the conduct was not “overwhelming,” it lasted long enough to let a jury to decide whether it was severe or pervasive. (Babbitt v. PRI XVII LP, D. R.I., 10/26/09)

2 lessons learned

1. Don’t roll your eyes at harassment. When the manager saw the inappropriate conduct, she needed to take prompt, effective action to stop it.

2. Harassment is in the eye of the beholder. Remember, harassment is a subjective standard. If an employee feels the conduct is unwelcome or offensive, then a jury may, too.

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Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her Case in Point blog postings.

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