Does the ‘Equal Opportunity Jerk’ Defense Still Work? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

This one just might take the cake. Or, at least frost you.

It’s true that employers sometimes trot out the “equal opportunity jerk” defense in sexual harassment cases, saying the harassing manager was awful to both women and men. But this court says that isn’t much of a defense at all, noting that, “It would be exceedingly perverse” if an employer could shield itself from Title VII liability by showing an alleged harasser sometimes abused men “although his preferred targets were female.”

Case in Point: Sharon Kaytor, a secretary at a submarine manufacturing company, was assigned to work for Daniel McCarthy. The first five years were uneventful. Then, around the time of McCarthy’s divorce, his behavior changed.

Kaytor says he began making uncomfortable sexual comments to her, leering at her, standing very close to her and sniffing scarves on her desk. She brushed it off as merely a difficult time in McCarthy’s life.

When she rebuffed his advances, things got worse.

In fact, McCarthy threatened to “choke” or “kill” Kaytor, saying he wanted to see her in a “coffin.” When Administrative Professionals Day came, he gave her a potted pussy willow plant with a card saying he hoped it would give her “pleasure in the years ahead.”

Kaytor finally complained to HR. The company started an investigation and separated the pair. But her new job had fewer responsibilities than before and she was eventually fired.

Kaytor sued for sexual harassment and retaliation.

A lower court dismissed the case, saying McCarthy’s threats were “gender-neutral” because he sometimes threatened to “choke” or “kill” men, too. Ugh! But the appeals court wasn’t impressed with that argument. It reversed and sided with Kaytor, saying a reasonable jury could infer that McCarthy’s harsh treatment of Kaytor was the result of the spurned advances (and, thus, her gender).   

In responding to the “equal opportunity harasser” argument, the court pointed to a prior case by saying, “The inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.” (Kaytor v. Electric Boat Corp., 2d Cir., 6/29/10)

4 Lessons Learned…Without Going to Court

1. Have zero tolerance. That should be in everyone’ policies prohibiting harassment, as well as workplace violence and threats.

2. Investigate all claims. Every court is looking to see if you do. This court looked, too. In 2010, it’s a “best practice.”

3. Monitor for retaliation. It’s easy to turn a blind eye and ignore signs of retaliation. But, in today’s legal climate it’s even easier to get socked with a retaliation claim.

4. No pussy willow plants as gifts. Ever.

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