You no doubt take sexual harassment complaints seriously and promptly try to learn the facts. But which facts should you consider when deciding whether the conduct creates a hostile work environment?
Look at the totality of the circumstances. For example, comments that aren’t directly sexual can still contribute to a hostile environment if the context indicates that the comments are related to others that are sexual.
Recent case: Sharon Kaytor, who worked as an administrative assistant for the Electric Boat Corp. for several years, got along well with her supervisor. She said that all changed when he was going through a divorce. From then on, she described a work environment that at first made her uncomfortable. Later, she feared for her life.
It began with the supervisor making comments about women in general, especially their weight. He began complimenting Kaytor’s clothing and telling her that she looked “good for her age.” Kaytor also noticed that her boss stared at her, but she tried to ignore it. Then the supervisor came into her office and picked up two scarves she had on her desk. He smelled them, said, “They smell like you,” and proceeded to come closer, sniffing her hair. Again, she tried to ignore him.
Eventually, the boss’s behavior took a meaner turn, something Kaytor attributed to her rejection of his advances toward her. For example, while watching her walk across the office, he exclaimed so that others could hear, “You have a flat ass.”
Over the next few months, Kaytor said the man’s behavior got even worse. He began threatening to kill her. On several occasions, he told her he would like to see her in a coffin and would like to choke her. He also gave her a potted plant on Administrative Professionals Day. The plant was a pussy willow bush, which co-workers viewed as a sexual reference.
Kaytor still tried to ignore the comments and the plant, but was urged by at least one co-worker to take the threats seriously.
Kaytor finally went to HR, which immediately transferred her to another office in the same building. There she reported to a different supervisor. He, however, reported to Kaytor’s old supervisor.
Finally, she sued for sexual harassment—and Electric Boat terminated her.
The district court dismissed her case. It said none of the comments had been overtly sexual. The court also refused to consider the death threats as part of the sexual harassment. In effect, it concluded that the environment hadn’t been sufficiently sexually offensive for Kaytor to win her lawsuit.
But the 2nd Circuit Court of Appeals reversed the lower court decision and ordered a trial. It concluded that the death threats were in response to Kaytor’s rejection of the boss’s advances and therefore related to sex. (Kaytor v. Electric Boat Corporation, No. 09-1859, 2nd Cir., 2010)
Final note: Never tolerate death threats. The supervisor should have been fired.
- Beware expanding EEOC investigation after employee complains about discrimination
- Conduct truly independent investigations to ferret out retaliation by rogue supervisors
- Tell bosses: Don't voice anger about discrimination complaint
- Tell bosses: No comments on insurance cost, age
- Use 'Soft' criteria for staffing decisions? Be prepared to back up rationale