One Case Where Sexual Comments and Innuendo are All Perfectly Legal

By Eric B. Meyer

When Harold Wasek signed on to work at an oil rig in Pennsylvania, he had no idea what lay in store for him, especially when one of his co-workers discovered that Wasek would get easily riled with sexually explicit stories, jokes, fantasies, and names.

You’ve got such a pretty mouth.”

“Boy you have pretty lips.”

“You know you like it, sweetheart.”

Wasek complained to his supervisor. But the harassment worsened. He was touched in a sexual manner: grabbing his buttocks, poking him in the rear with a hammer handle and something described as a long sucker rod.

He sued for harassment — and lost

So Wasek sued claiming sex discrimination. And he lost. Why? Because his harasser was a straight man.

Seriously.

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Title VII of the Civil Rights Act  prohibits discrimination in the workplace because of sex, among other things. Usually, the harassment is male on female or female on male; however, the law does prohibit male-on-male sexual harassment provided that certain criteria are met. In 1998, the Supreme Court offered guidance in this area.

What the Supreme Court has said

A trier of fact may infer that harassment occurred because of sex when the plaintiff can produce:

  1. Credible evidence that the harasser was homosexual;
  2. Evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
  3. Comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

In Wasek’s case, everyone in his workplace was male, so that left only one chance to make his case: proving that his harasser was gay. Good luck with all that. The best Wasek could do was speculate that his harasser was bisexual. No dice, according to the Court (the case is Wasek vs. Arrow Energy Services, Inc.). Wasek loses.

This case demonstrates the difference, under the law, between sexual harassment and bullying, the latter of which is … legal. But this case and situations like this leave me shaking my head because no employee should have to tolerate what Wasek went through.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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