Pottymouths Don’t Usually Win Sexual Harassment Lawsuits

By Eric B. Meyer

A federal court has bounced a woman’s sexual harassment claims against her former employer because the court believed that the woman was not offended by the conduct about which she complained.

She could dish it as well as she could take it.

Here are the relevant facts:

  1. Plaintiff presented evidence that her coworkers called her names such as “female,” “missy,” “woman,” “toots,” and “darling” at least 35 times per month.
  2. Plaintiff also contended that she was asked out on dates and asked about her sex life.
  3. The employer had an anti-harassment policy and the plaintiff complained twice.
  4. Plaintiff ultimately quit, believing that she had been constructively discharged.

Oh, right. I should also mention that Plaintiff occasionally dropped the F-bomb at work, referred to a co-worker as gay on three or four occasions as part of “an ongoing joke,” and sent multiple emails containing sexual humor to co-workers.

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Court rules: No harm, no foul

In the Third Circuit, based in Philadelphia, a plaintiff must establish five elements to succeed on a sexual harassment claim, one of which is that the conduct detrimentally affected the plaintiff. Here, the court denied relief to the plaintiff because it appeared that she contributed to the hostile work environment:

Finally, the record contains evidence that [plaintiff] Mandel actively participated in creating a work environment in which vulgarity and sexual innuendo were commonplace. Mandel’s use of explicit language and her e-mails involving ongoing sexual jokes demonstrate a casual ease with this type of workplace behavior. The use of sexual humor does not on its own demonstrate that Mandel is incapable of being offended by degrading comments, but when combined with a lack of evidence of any subjective distress, a reasonable jury could not find that Mandel has proven that the harassment had a detrimental effect on her. Therefore, Mandel fails to provide sufficient evidence to satisfy this element.”

Therefore, the court dismissed the plaintiff’s sexual harassment claims. The case is Mandel v. M & Q Packaging Corp.

Three takeaways for employers

  1. Few defense verdicts are obtained based on “the plaintiff wasn’t offended” defense, especially when the conduct is as described above. Don’t condone offensive behavior in the workplace just because you perceive that the victim is not offended. It doesn’t matter what you think. It matters how the victim feels. And even if the victim is not genuinely offended, that tune will change once the lawsuit is filed.
  2. Make sure that employees know how to report claims of harassment in the workplace. This can be done in two ways: (a) distribute a clear anti-harassment policy; and (b) pair that with anti-harassment training.
  3. Take all complaints seriously. It’s not good enough to train and have a clear policy if employers make snap subjective judgments about complaints before having investigated them. So, when you receive a complaint, start by following-up with the victim, getting the full story (in writing), obtaining supporting documents and names of witnesses, and then investigate further. Only after a full investigation will you be able to demonstrate to a court and, more importantly, to the victim, that you took the complaint seriously. Remember: employees who feel respected are less likely to bring lawsuits.

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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