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Enjoy the ride! Sexual innuendos aren’t double funny

By Mindy Chapman, Esq., Mindy Chapman & Associates
3/6/2008 - 9:00am
Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Every school has a class clown. So, it seems, does every workplace. Sometimes, those jokesters cleverly craft their double entendres so they can be taken either way … sexual or not sexual. But a new court ruling says enough of those coy games. “If a reasonable juror could find that in context such comments took on a sexual meaning,” the joke will be on you in the form of a sexual harassment lawsuit.

Case in Point: Ray Stark and Brian Paonessa worked together at a Florida car dealership. Paonessa allegedly propositioned Stark constantly, using vulgar language to describe his sexual fantasies of them together. Stark complained to a supervisor of Paonessa’s ongoing comments and conduct, which included zipping and unzipping his pants in front of Stark. However, the supervisor felt the behavior was “innocuous” and took no action to stop it or report it up for an investigation.

Stark eventually filed a sexual harassment claim with the EEOC. The employer denied the charges, claiming Paonessa was only engaged in “horseplay and roughhousing” and Stark took his comments “the wrong way.” The employer argued, for example, that when Paonessa told Stark he’d “enjoy the ride,” Paonessa was really referring to “carpooling” to work together, not sexual activities. (EEOC v. Belle Glade Chevrolet, Inc. S.D. Fla. 1/3/08).

How did this case end … and what lessons can be learned?

The court rejected the employers assertion that the double entendre was really a clean comment, “The harassing aspects of many of Paonessa’s comments are mutually reinforcing so that each of Paonessa’s comments were more offensive when considered in the context of the overall pattern of conduct.”

In other words, it’s very difficult to joke around in a sexual manner sometimes and then claim you’re not other times.

3 Lessons Learned ... Without Going to Court

Innuendos are dangerous. Train your employees that double entendres and innuendos that can have a sexual meaning are prohibited in the workplace. Courts are not dumb. They won’t give employees who engage in disrespectful conduct the benefit of the doubt.
Train managers & supervisors about notice. It’s 2008 and every manager and supervisor today must be aware of their legal obligations to report all harassing conduct consistent with their company’s reporting procedures in order to initiate a prompt and effective investigation to stop the conduct. Had that occurred here, it could have been a very different outcome.
Have “no tolerance” policies. Make sure your anti-harassment & discrimination policy clearly states that your organization has a “no tolerance” standard for any harassment, discrimination or retaliation of any kind. Then back it up with consequences.