Don’t rely on ‘equal-opportunity jerk’ defense — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Don’t rely on ‘equal-opportunity jerk’ defense

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in Discrimination and Harassment,Human Resources

Employers facing sexual harassment lawsuits against offensive, foul-mouthed managers sometimes trot out the “equal-opportunity harasser” defense. It basically says this: We know our guy is rough, but he didn’t sexually harass women because he treats all his employees horribly.

That’s a pretty flimsy nail to hang your defense on—and one that often doesn’t work.

As the court notes in the following case, it would be “exceedingly perverse if a male [supervisor] could buy … his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.”

Best practice: Clamp down on any kind of abusive behavior by managers—regardless of the target’s gender.

The case: Sharon Kaytor says the behavior of her boss, Daniel McCarthy, began to change soon after his divorce. She says McCarthy began making uncomfortable sexual comments to her, leering at her, standing very close to her and sniffing scarves on her desk.

When she rebuffed his advances, McCarthy threatened to choke Kaytor, saying he wanted to see her in a coffin.

One day, he gave her a potted pussy willow plant with a card saying he hoped it would give her “pleasure in the years ahead.” Kaytor saw this as a sexual innuendo and finally complained to HR.

The company separated the pair. When she was fired months later, Kaytor sued for sexual harassment.

A lower court dismissed the case, saying McCarthy’s threats were “gender-neutral” because he sometimes threatened to “kill” men, too.

But the appeals court reversed and sided with Kaytor: “The inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved.” (Kaytor v. Electric Boat, 2nd Cir.)

Final note: Even if the equal-opportunity harasser defense does help you block a sexual harassment lawsuit, a manager’s abusive action could still trigger liability under state laws for assault, battery and intentional infliction of emotional distress.

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