Sharing Topless Photos At Work: Not Smart, But Not an Invitation, Either

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By Eric B. Meyer

Dear Google User Who Got Four Words Into This And Clicked:

Sorry, this is an employment law blog.

From time to time we have some prurient (look it up) content. Like, this one time, I blogged about a former prostitute who sued for sexual harassment. Sure, I’ve also discussed Playboy-posing cheerleaders, and a place called the Wild Beaver Saloon. And then there was that post about the strip club. Make that posts (plural).

Anyway, to those who got here looking for topless photos, again, I’m sorry. I cannot accommodate (look it up) you.

Inappropriate behavior from top to bottom

Instead, what I plan to discuss today is this recent Pennsylvania federal court decision, in which the court shot down another lame attempt by an employer to assert the “she was asking for it” defense in a sexual harassment case.

(Sorry, the court’s opinion has no pictures and I’ve checked the case docket five times — you know, to be thorough and stuff. No pix there either).

Everyone here engages in inappropriate workplace behavior, and the facts here are fairly straightforward.

The defendants claimed that the plaintiff, a former employee, brought topless photographs of herself and others to the workplace, initiated sexual conduct by sharing those photos, sent sexually explicit text messages, and made sexually suggestive comments to male co-workers.

For her part, the plaintiff admitted having shown co-workers a photograph of a topless woman who had participated in a “wet t-shirt contest” at a motorcycle rally known as “Mountainfest,” but denied showing those employees inappropriate photos of herself.

(Go ahead. I’ll pause while you Google.)

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This argument NEVER works

However, the plaintiff denied that she welcomed the subsequent groping and vulgar language that followed from her male co-workers. The defendants did not deny that employees behaved inappropriately. Instead, without citing any supporting case law, they argued that the plaintiff invited this reaction by voluntarily showing her co-workers a photograph of a topless woman.

The “she was asking for it” argument never works in defending a sexual harassment case.

Trust me. It ranks right up there with the “exotic dancer” defense and the “plaintiffs listen to rap music and rappers say ‘n–a’ a lot” defense in a race discrimination case. But some folks have to learn the hard way. And this time was no different, as the court denied the defendants’ motion for summary judgment.

When conducting anti-harassment training — you’re doing that, right? — please emphasize that behavior that your mother wouldn’t tolerate is no good for the workplace, either. It doesn’t matter if the “harasser” didn’t mean anything by that ass-grab. It only matters whether the “victim” is offended.

And even if it appears that the “victim” is not offended, trust me, he or she will be once that lawsuit is filed.

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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3 Comments on “Sharing Topless Photos At Work: Not Smart, But Not an Invitation, Either

  1. Great post. I laughed out loud, and actually spent some time thinking about how I would react to a similar situation. If the plaintiff acted as the defendant says she did, showing photos of herself, sending explicit texts and making suggestive comments, she may have been setting herself up to be the subject of a sexual harassment investigation and maybe disciplined or fired for it, but the judgement is right. No one EVER asks to be sexually harassed. Not her, and not the guys she worked with. Prurient or puerile? In this case, probably both.

  2. Question–Had this company conducted anti-harassement training? It’s hard to imagine (but then again, you could probably come up with some real examples, Eric) how all the parties in question could have acted more wrong (or is wrongly)? Whatever. What a mess.

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