Employers are rightly sensitive about the effects of any kind of sexually explicit talk at work. That’s because some employees are looking for anything to sue over.
But now the 2nd Circuit, which has jurisdiction over New York, has handed down a ruling sharply limiting frivolous cases that could have set unrealistic employer obligations.
Recent case: Valerie Marshall worked for a boss involved in a same-sex relationship, which apparently offended Marshall’s religious beliefs. She claimed her boss talked about lunch dates and weekend outings with his partner. On one occasion, he tried to show her a sex toy he had bought for his partner—the only time there was direct sexual reference.
On occasions, the boss also allegedly stood over Marshall with clenched fists, lost his temper and disparaged her education.
She sued, claiming all this amounted to a sexually hostile work environment.
The 2nd Circuit Court of Appeals disagreed. First, it said that the one sexually linked incident wasn’t enough to create a hostile environment. Then it concluded that discussing one’s relationships—same sex or heterosexual—in a manner that isn’t sexually explicit doesn’t create a hostile environment either.
Finally, although the court found the boss’s aggressive behavior crass, it wasn’t sexual harassment. It dismissed the case. (Marshall v. NYC Board of Elections, No. 07-4561, 2nd Cir., 2009)