Diapers and spankings: equal opportunity humiliation or sexual harassment?

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in Discrimination and Harassment,Human Resources

You may remember a case that garnered lots of publicity a few years ago. A saleswoman claimed that her employer’s team-building activities were really a form of sexual harassment. A jury agreed, giving her $1.4 million in damages for having to endure public spanking and other indignities. Now the employer will get another shot at the case in front of a new jury.

Recent case: Janet Orlando worked in Alarm One’s Fresno office, helping to close deals on door-to-door alarm system sales. Before sales teams went out each day, a field supervisor led a “pep rally” to motivate the teams. The motivation included pies in the face, eating baby food, wearing diapers and being spanked.

Orlando said the spankings in particular were sexual harassment, and the first jury agreed. But now the Court of Appeal of California has ordered a new trial. It concluded that the jury should have been told that to constitute sexual harassment, the spankings had to have been motivated by sex.

Alarm One claims the humiliation was equal opportunity, with no particular sex being targeted. Orlando’s lawyers vow to take the case to trial again. (Orlando v. Alarm One, No. F050759, Court of Appeal of California, 5th Appellate Division, 2008)

Advice: Remember, just because something isn’t illegal doesn’t mean it’s a good idea. Regardless of the outcome of this case, Alarm One has already lost. The company is bankrupt. The trial, plus appeals and settlements with three other employees, has exhausted its insurance coverage. Even if it wins in the end, it will be a hollow victory.

Many so-called team-building exercises can lead to big trouble. For example, disabled employees who can’t participate in retreats because of physical limitations may sue. There also is a huge risk that participants will get carried away, saying and doing things that may trigger harassment lawsuits.

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