Employers should certainly strive to make their workplaces as pleasant and harassment-free as possible. But supervisors make that almost impossible when they occasionally lapse into jerk-like behavior.
Fortunately, courts expect employees to have relatively thick skins. Behavior that is crude or obnoxious isn’t usually grounds for a harassment lawsuit unless it targets people based on a protected characteristic (sex, age, race, disability, etc.).
Still, the “equal opportunity harasser” argument is a pretty flimsy nail to hang your defense on. It’s better to clamp down on all kinds of abusive and boorish behavior—regardless of the target.
Recent case: Donald, a sales rep at an Arkansas retail store, quit after enduring what he believed was sexual harassment from his new boss, who had an abrasive personality.
On one occasion, the manager took a towel from Donald, rubbed it against his crotch and gave it back to Donald. Another time, he squeezed Donald’s nipples and announced, “That was sexual harassment.”
When Donald and other employees complained to higher-ups, the manager was reprimanded and the behavior stopped. Soon after, Donald left the company. Then he sued, alleging same-sex harassment.
The court dismissed the claim, reasoning that the company responded immediately when notified of the boss’s actions. Plus, the court said that while the behavior may have been “obnoxious,” it wasn’t same-sex harassment. It was simply poor behavior. (Rickard v. Swedish Match North America, No. 13-3729, 8th Cir., 2014)
Final note: Even if you avoid same-sex harassment liability by pointing out that the boss is rude to everyone, vulgar and profane actions by managers could still trigger liability under state laws for assault, battery and intentional infliction of emotional distress.
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