The U.S. Supreme Court has handed down a new ruling that provides some guidance on when a single remark can amount to sexual harassment. The court also looked at when the timing of a punitive action against a complaining employee does and doesn’t support a retaliation claim. As we’ll explain, the decision suggests that your hands aren’t tied when making personnel decisions about an employee who has complained about harassment.
Supervisor Recounts Applicant’s Comment
Shirley Breeden, a Clark County, Nev., school district administrator, attended a meeting with her male supervisor and a male co-worker to review psychological evaluation reports on four job applicants. Her supervisor read out loud a statement that one applicant reportedly made to a co-worker at a former job: “Making love to you is like making love to the Grand Canyon.” The supervisor then looked at Breeden, shrugged, and said he didn’t know what that meant. The co-worker said, “I’ll tell you later,” and both men laughed.
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Employee Transferred After Complaining
Breeden filed a sexual harassment charge over the conversation with the federal Equal Employment Opportunity Commission and then brought a lawsuit. She claimed she was sexually harassed and retaliated against because supervisors treated her harshly after she complained about the alleged harassment incident and gave her an unwanted transfer after she filed her lawsuit. The school district denied Breeden was sexually harassed in the exchange between the two men or that it retaliated against her.
The federal Ninth Circuit Court of Appeals, which covers California, said the incident wasn’t harassment. But the court gave Breeden the go-ahead to proceed with her retaliation claim, ruling that the retaliation provisions of federal anti-bias law protect an employee who complains about practices that the employee could reasonably believe are illegal. The school district appealed.
Single Incident Wasn’t Harassment
The U.S. Supreme Court overturned the Ninth Circuit and threw out Breeden’s lawsuit. The court stated that no reasonable person could have believed that the episode in dispute here amounted to sexual harassment, so Breeden’s complaints about the incident were not protected by anti-retaliation rules.
The court explained that whether conduct is sufficiently offensive to violate federal anti-discrimination law depends on a number of factors, including its frequency and severity, whether it’s physically threatening or humiliating or is merely offensive, and whether it interferes with the employee’s work performance. According to the court, simple teasing, offhand comments and isolated incidents, unless extremely serious, don’t amount to illegal harassment. In this case, the court said the supervisor’s comment that he didn’t know what the applicant’s statement meant, the co-worker’s response and their chuckling fell far short of illegal harassment.
Timing Of Transfer Didn’t Suggest Retaliation
The court also rejected Breeden’s claim that the district retaliated by transferring her after she filed her EEOC charge and lawsuit. That’s because the timing of Breeden’s transfer was too remote from Breeden’s filings—almost two years later—to suggest that it was retaliatory. Plus, a district superintendent remarked that she was thinking of transferring Breeden the day before she discovered that Breeden had filed a lawsuit. The court said that an employer’s decision to proceed with a previously planned transfer does not constitute retaliation.
Practical Advice
Although the district was not liable in this case, it took years—and hefty defense costs—to end the dispute. Take these practical steps to protect yourself:
- Caution employees about language. Warn supervisors and employees to avoid using—or repeating—sexually offensive remarks. If the supervisor had simply allowed Breeden to read for herself the applicant’s statement—which Breeden admitted didn’t offend her—and not commented on it, the entire dispute could have been avoided.
- Take action immediately. A single crude remark typically won’t amount to illegal harassment. But you still must promptly investigate and resolve all complaints to be sure the incident really is an isolated episode and to prevent a minor problem from mushrooming into a lawsuit.
- Document personnel decisions. It’s best to let some time pass before taking action against an employee who has complained. However, the court’s ruling suggests you can go ahead with previously planned changes or personnel decisions involving a complaining worker. Be sure to keep detailed records of the legitimate reasons for an adverse action and the timing of your decisions to prove your action wasn’t retaliatory.