Here’s some food for thought: Failing to stop an employee from harassing women and men alike may be legally acceptable, but is probably still ill-advised.
An employer that allows such conduct may escape legal liability, but that tolerance may make the workplace unattractive to good employees. Plus, it probably won’t be as productive as it would be with good anti-harassment policies in place.
Recent case: Dru Smith worked in the bakery section at a Hy-Vee store. She claimed another bakery employee, also a woman, harassed her by generally doing things that created a sexually charged and explicit work environment.
According to Smith, the woman made sexually explicit bakery products shaped like body parts, rubbed up against other employees (both women and men), smacked co-workers of both sexes on the buttocks and stuffed her hands into a male co-worker’s pants pockets and said, “Hey there, big boy.”
Smith was fired after allegedly making several mistakes on bakery orders. She fired back with a sexual harassment lawsuit. Smith lost her first trial and appealed.
Now a panel of the 8th Circuit Court of Appeals has refused to reverse the decision, based on the idea that sexual harassment does not include the sort of equal-opportunity sexually charged conduct alleged in this case.
The problem was that the conduct Smith complained about was essentially same-sex harassment. And the U.S. Supreme Court has said there are just three ways to prove that same-sex harassment is sexual harassment.
First, Smith could have tried to prove that the harassment she suffered was based on the harasser’s sexual desire for a person of the same sex. Or she could have tried to prove that the same-sex harasser was motivated by hostility at having to work with someone of the same sex. Finally, she could have tried to show that the alleged harasser treated men and women differently in the workplace.
Smith did none of those. At best she showed that the female co-worker was an equal-opportunity harasser, subjecting men and women to the same rude and sexually charged conduct. (Smith v. Hy-Vee, No. 09-2631, 8th Cir., 2010)
Advice: It’s still a bad idea to tolerate the sort of behavior that occurred in this case. It’s counterproductive. Smart employers recognize that stopping what is essentially bullying is important. Also keep in mind that there is a strong movement to outlaw such behavior in the workplace. Several states are either considering or have already passed laws making employers liable for workplace bullying. By cleaning up the workplace now, you’ll be one step ahead of emerging law.
Final note: Here’s another practical reason to go beyond what the law requires. Litigation is expensive and there is always an attorney willing to challenge the status quo. In this case, the employer paid to defend itself in front of a jury and on appeal. Plus, imagine the negative publicity when customers read all about the case.
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