A supervisor reviewing reports on job applicants with two other employees noted that one candidate had told a co-worker, "I hear that making love to you is like making love to the Grand Canyon." When the supervisor said he didn't know what that meant, the male employee said, "I'll tell you later." Then both men laughed.
Shirley Breeden, the lone female in the room, wasn't laughing. She complained about the comment, then filed a lawsuit claiming she was retaliated against for lodging her complaint.
In a unanimous opinion, the U.S. Supreme Court threw out her case. It said workers can sue for unlawful retaliation only if a reasonable person could believe that the alleged harassment "is so severe and pervasive as to alter the conditions of the victim's employment and to create an abusive working environment." Breeden's problem: No one could reasonably believe the isolated comment created an abusive working environment, the court said.
Breeden also claimed that the school district used a job transfer to punish her for filing a lawsuit. The court said that's not possible because the transfer decision was made before anyone knew she had filed suit. (Clark County School District v. Breeden, No. 00-866, U.S. Sup. Ct., 2001)
Advice: This is one of a long line of cases that says a single offhand comment or isolated incident doesn't create a hostile work environment, unless it's particularly serious. As a general rule, the only incidents that are serious enough to create a hostile environment involve physical contact.
So take our long-standing advice: Make sure your harassment policy clearly forbids all harassment and all forms of retaliation. Then enforce your policy, punishing every transgression, even if it's the first time. Make sure that the punishment fits the crime, with milder rebukes for minor offenses and tougher sanctions, including firing, for serious and repeated violations.
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- USERRA allows only one reinstatement, not two
- You never know what you'll learn: Before making firing decision, let employee talk
- Ensure fair distribution of work opportunities