The recent “spanking” lawsuit—where the “all-in-good-fun” spanking ended up with an expensive lawsuit—has got us thinking. We like our employees to enjoy themselves at work. How do we draw the line between fun, jokes, and good-natured teasing, and sexual—or other—harassment? — Gretchen, HR Manager in Morro Bay
Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.
We asked Mary Topliff for help with this question about sexual harassment “grey areas.”
Most employers would prefer to have a lighthearted, fun atmosphere in which employees enjoy working rather than a stifling workplace full of dos and don’ts in which employees are fearful to speak to one another. Yet, whenever a big harassment jury verdict hits the newsstands (or the Internet), employers are left to ponder whether it’s possible to have an open and friendly work environment and still avoid lawsuits.
The good news is that most lawsuits that juries decide involve much more than a one-time joke gone awry or friendly pat on the back. The behavior in the so-called “spanking” case went well beyond most workplace norms. The case was brought by a female field supervisor of a California-based alarm company. Its sales unit engaged in a series of planned activities that involved the winners of sales incentives throwing pies at the losers, feeding them baby food, making them wear diapers, and spanking their behinds with their competitor’s yard signs. The plaintiff had been spanked in this context three times before she quit. Although the defense argued that the plaintiff willingly engaged in the conduct, the jury that awarded her $1.7 million clearly didn’t consider it an “all-in-good-fun” activity.
While we can see that this degrading and humiliating behavior could hardly be couched as friendly office banter, it is true that teasing and related behavior, which often are, can lead to hostile environment claims. The legal standards at play have existed for more than ten years. Generally, a plaintiff must prove that he or she was subjected to verbal or physical conduct of a sexual nature (or, for that matter, conduct based on race, age, national origin, or any other protected class); the conduct was unwelcome, and the conduct was sufficiently severe or pervasive so as to alter the plaintiff’s employment conditions and create an abusive working environment. In the spanking case, the plaintiff charged that she was a victim of sexual harassment.
In examining whether particular conduct in the workplace is severe and pervasive enough to create an abusive working environment, courts will determine whether it is subjectively and objectively offensive, based on the perspective of a reasonable person standing in the victim’s shoes. Courts will examine a variety of factors in assessing the work environment, such as the frequency of the conduct, its severity, whether it is physically threatening or humiliating, whether it unreasonably interferes with an employee’s job performance, and whether it affects the employee’s psychological well-being.
Recently, the California Supreme Court made some headlines by deciding a case involving the television show Friends. It involved frequent, sexually graphic comments by certain male writers of the show that were degrading to women in general and to some specific women, but not to or about the plaintiff, who was a writer’s assistant. In a surprising decision, the high court found that the conduct did not constitute a hostile work environment because it was not directed at the plaintiff and she did not establish that her work performance was impacted by it. The defense also raised the interesting concept of “creative necessity” to demonstrate that this television show’s work environment involved discussions of a sexual nature and the writers needed to be able to engage in these free-flowing discussions as part of the creative process.
While this case is quite favorable for employers in defending harassment claims with similar fact patterns, it clearly does not change employers’ overarching obligation to provide a work environment free of harassment and discrimination, as required by the Fair Employment and Housing Act (FEHA). Moreover, employers are responsible for both conduct they know about and conduct they should have known about. Additionally, under an amendment to FEHA, employers are liable for sexual harassment by nonemployees when the employer does not take immediate and appropriate corrective action to end the harassment.
With these legal standards in mind, here are a few general rules to use when evaluating a work environment:
- Physical contact that is more than a handshake, gentle pat on the upper back, or a high-five will be viewed more closely and seriously than verbal or visual incidents.
- Behavior that is threatening, intimidating, or humiliating is much easier to establish as constituting an abusive work environment.
- Comments, jokes, or banter that are offensive or degrading when written down (i.e., without hearing the intonation of the speaker’s voice to establish the kidding nature of the comment) will involve heightened scrutiny.
- Behavior that is directed at or is about the “victim” is more serious than generalized comments.
Finally, here are some observations culled from years of advising employers and conducting harassment prevention training:
- We’re dealing with human beings who are unique and imperfect. Our words and actions often have unintended consequences.
- Workplaces are not egalitarian utopias.
- A friendly work team can change quickly with the addition of a new employee, a new supervisor, an employee who has just returned from a long leave of absence, etc.
- We all have internal boundary lines between funny and offensive.
- People can be just plain mean-spirited to those who are weak, different, odd, whiny, goody-two-shoes, or fill in the blank.
- If we could teach people how to have common sense, a lot of attorneys and human resources professionals would be out of work.
To achieve an open and friendly work environment that does not stray into the danger zone, communicate with employees about their need to help create and maintain the proper atmosphere. Give employees the power and tools to police themselves, but be realistic about their inherent limitations as humans.
Mary L. Topliff is principal of the Law Offices of Mary L. Topliff in San Francisco.