HR Management & Compliance

Is Nudity on TV in the Work Lounge Sexual Harassment?

The U.S. district court in Minnesota recently heard a claim from an employee who was exposed to scenes containing nudity on the television in the employee lounge. The employee claims that these scenes were sexual harassment, does she have a claim?

Sexual

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Background

Stephanie Sims worked as a bus driver for Metro Transit for 4 years. On January 28, 2017, she was in the drivers’ lounge while other bus drivers were watching the Netflix series Luke Cage on the television. When she noticed nudity on the screen, she demanded that her coworkers turn the show off. She claimed they briefly argued with her but eventually turned the program off. She left the lounge, but the show was back on when she returned, prompting her to complain again.

Sims also alleged that she overheard coworkers using the word “boner” in a conversation that wasn’t directed toward her and wasn’t about her. She claimed that another employee referred to his “Johnson” in her presence. After both incidents, a manager told the employees who made the comments to stop the inappropriate behavior.

Sims reported the TV-related incident to several managers. In response, the managers immediately disconnected the television from the streaming device that allowed access to Netflix and ultimately removed it from the garage. A manager also gave Sims Metro Transit’s sexual harassment policy and the union’s phone number. A different manager counseled the employee who brought the streaming device to work, and the other employees were reminded about the organization’s respectful workplace policies and its prohibition on retaliation.

According to Sims, a coworker called her at home and told her the other drivers were angry and planned to confront her. She worked the next day without incident, but on the following workday, she learned from two coworkers that other employees were angry with her and had threatened her.

She reported the alleged threats to her supervisor, who responded with suggestions intended to help her feel safe, but she rejected them and gave her employer a psychologist’s note stating she couldn’t have any contact with other Metro Transit employees.

Sims was placed on administrative leave until she felt safe to return to work. After months of holding her job open for her, Metro Transit finally terminated her employment. She then sued the organization in federal court for sexual harassment, retaliation, and negligent infliction of emotional distress under Title VII of the Civil Rights Act of 1964, among other claims. Metro Transit moved for summary judgment (i.e., it asked the court to dismiss Sims’ claims without a trial), and Judge Paul Magnuson dismissed the case.

Court’s Decision

Sexual harassment. Judge Magnuson noted that briefly being exposed to a couple of scenes containing nudity and overhearing some unrelated comments simply aren’t enough to constitute severe or pervasive harassment.

Moreover, Sims couldn’t show that Metro Transit failed to take prompt remedial action when she complained about her coworkers’ allegedly harassing behavior, especially since her managers responded to her complaints and immediately took action. Accordingly, her harassment claim failed.

Retaliation. The court found that while Sims did engage in protected activity by complaining about the alleged sexual harassment, she failed to show she was terminated because of her protected activity. Instead, Metro Transit placed her on administrative leave and attempted to find ways for her to feel safe enough to return to work.

Moreover, it held her job open for months waiting for her to return. Because she couldn’t show that she would have remained employed but for her harassment complaint, her retaliation claim failed.

Negligent infliction of emotional distress. To establish a negligent infliction of emotional distress claim under Minnesota law, Sims had to show she (1) was within a zone of danger of personal physical impact, (2) reasonably feared for her own safety, and (3) suffered severe emotional distress with the attendant physical manifestations.

Judge Magnuson concluded that Sims failed to establish she was within a zone of danger of physical impact. The threats allegedly made by her coworkers and a “chopping motion” made by one employee couldn’t be attributed to the employer and otherwise weren’t enough to pose any real risk of danger. Sims v. Met Council, 2019 U.S. Dist. LEXIS 142540 (D. Minn., Aug. 22, 2019).

Takeaway

When an employee complains of harassment, it’s crucial to take immediate action to stop the behavior. Here, the employer successfully avoided liability and obtained summary judgment by promptly eliminating access to the streaming television device, giving the complaining employee its sexual harassment policies and the union’s phone number, and training her coworkers on its respectful workplace policies and its prohibition on retaliation.

Serena O’Neil—an attorney with Felhaber Larson—can be contacted at soneil@felhaber.com.