When Sexting and Flirting isn’t Sexual Harassment At All

By Eric B. Meyer

To prove sexual harassment, a plaintiff must have been subjected to pervasive or severe behavior based on the plaintiff’s sex. Further, not only would an objective person have to find the behavior offensive, but the plaintiff must be offended as well.

Usually, when a plaintiff claims sexual harassment, a court takes for granted that conduct at issue offended the plaintiff.

But, I just read about a case that bucked the trend.

Inappropriate behavior?

In Bowling v. Shinseki, the female plaintiff exchanged a series of text messages with a male co-worker, which the Court described as “of a mixed work and sexual nature.” The plaintiff alleged that this co-worker inquired into her sex life, asking personal and sexually explicit questions.

Sounds like inappropriate workplace behavior to me, but….

The plaintiff considered the messaging to be part of a “certain amount of banter that goes into these professions that is not a big deal for me and for several people.” Further, she viewed it as “innocent flirting” and “was not too bothered by the comments because [she] really just didn’t care and … was not offended.”

After the plaintiff testified at deposition that she was not offended, the Court had no problem dismissing the plaintiff’s hostile work environment claim:

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Based on the foregoing, it is abundantly clear to the Court that Plaintiff did not hold a reasonable, good faith belief that she was subjected to severe or pervasive conduct that would alter the terms and conditions of her employment.”

The trouble with sexual behavior on the job

As it turns out, the only reason that the plaintiff complained about the text messages to her employer was because the co-worker’s wife found out about the texts between the plaintiff and her husband and, subsequently, threatened the plaintiff.

When I conduct respect-in-the-workplace training for employees and supervisors, I often use a case like this as an example as a reason not to engage in such behavior. That is, two people may engage in conduct that neither find offensive at the time.

However, circumstances may change (e.g., a falling out, a termination). And those changed circumstances may lead to one of the two participants (conveniently) reconsidering whether the conduct offended them.

So, rather than leave that to chance, remind your employees that it’s better not to engage in such questionable behavior at all.

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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