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Porn at work: Don’t get into debate over what is ‘Too much’

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Management Training

by Mindy Chapman, Esq.

When an employee says no to the sexual images posted in co-workers’ workstations and to their sexually laced comments, your company had better listen … and act. It shouldn’t debate over “how much” porn is acceptable.

As a recent lawsuit shows, even if an employee initially tolerates a sexually charged workplace, she can drop the lawsuit hammer at any time.

Case in point: The porn posted around a Pennsylvania foundry didn’t initially offend employee Virginia Kurschinske. Soon, however, male workers seemed to become engaged in a contest to show Kurschinske their favorite hard-core porn. Her complaints to management increased.

Eventually, management issued a ban on porn, but Kurschinske argued that workers ignored it. After the company suspended her for allegedly causing a fight, Kurschinske quit. She sued for gender discrimination, saying the workplace was a hostile work environment. The court let her case proceed to trial.

A jury will use the “reasonable person” test to measure whether the environment was hostile. Kurschinske also brought evidence that co-workers passed gas (making Kurschinske the target), grabbed her buttocks, simulated sex acts and asked for nude pictures of her daughter.

Hmm … wonder what jury wouldn’t find all that workplace conduct “unreasonable,” if not outrageous!

One more likely nail for the employer’s coffin: Kurschinske said she was told by a supervisor to “quit complaining” about the porn or she’d be “shown the door.” (Kurschinske v. Meadville Forging Co., W.D. Pa., No. 06-67, 6/21/07)

Lessons learned

1. A staff meeting isn’t the same as harassment-prevention training. The court stressed that this company (and any company) can turn to a simple get-out-of-jail-free card in such cases: Act quickly and effectively enough to stop the cause of the harassment complaint. But, in this case, the employer held a staff meeting and  told employees to “knock off” the porn. That message simply wasn’t effective.

2. Know what counts as “effective” action. The answer: formal harassment-prevention training for all employees. Make sure managers understand their obligations to take prompt, effective action in response to any offensive-conduct complaint. Then, discipline with teeth; make sure the consequences have an impact to stop bad behavior.

3. Prohibit porn and monitor for it. Actively filter porn from the workplace—both on the walls and online.

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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 ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial.

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