You take precautions to prevent workplace harassment by providing employees with up-to-date harassment policies, by training management on how to prevent harassment and by setting up an avenue for complaints. When an employee reports an instance of inappropriate behavior, you promptly investigate and respond following set procedures. But then an employee sues you, claiming a single incident created such a hostile work environment that they could no longer perform their job. That’s what happened in a recent California appeals court case illustrating when a single occurrence of inappropriate conduct will—or won’t—amount to illegal harassment.
No-Censorship Policy
California Institute of the Arts (CalArts) in Valencia has a policy prohibiting censorship of any artwork based on content but allows a written objection to a particular art piece to be submitted to the dean. Under the policy, the administration will respond to written complaints within 48 hours. The college also has a harassment policy noting that although the workplace should be free from all forms of unlawful harassment, the policy isn’t intended to intrude on the right to free speech in artistic expression.
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Student Portrays Cashier In Nude Painting
At a CalArts end-of-year show, two students exhibited a pencil drawing depicting CalArts faculty, staff and students engaged in sexual acts. In the center of the drawing was a naked sketch of Mary Herberg, an 82-year-old CalArts accounting cashier, straddling a nude male faculty member. Herberg’s daughter, Bobette Heuer, and granddaughter, Deborah Dutro, who both also worked for CalArts, learned about the display early in the day. Dutro immediately complained to her supervisor, and Heuer promptly submitted her objections in writing to the dean. CalArts’ human resources director recommended that Heuer take her mother out of town for the weekend so that she wouldn’t see the drawing. Heuer and Dutro then told Herberg about the artwork. She left work right away without looking at it and never returned.
The students removed the drawing on their own by the next morning—but not before more than 100 attendees viewed it at a reception the night before. The college’s Exhibit Review Committee then met to address Heuer’s written complaint, and it determined that the college had acted in accordance with its policy prohibiting censorship.
Sexual Harassment Lawsuit Filed
All three family members filed a harassment suit against CalArts. The college responded that the incident didn’t create a hostile work environment. Now a California Court of Appeal has agreed with CalArts. The court concluded that showing the offensive drawing in the gallery for just 24 hours did not constitute severe or pervasive harassment rising to the level of a hostile work environment. Although the artwork upset Herberg and her family members, it didn’t create a workplace so discriminatory and abusive that it unreasonably interfered with their job performance—the standard their suit had to meet. What’s more, the court said, the students’ drawing wasn’t intended to harass but rather to make a point about representational art.
When Is One Incident Enough?
It’s possible for a single instance of inappropriate behavior to be sufficient to leave you on the hook for harassment. But the court pointed out that the one incident must be severe and, typically, must include physical violence, such as rape or sexual assault, or the threat of physical violence. Even isolated occurrences of unwelcome sexual touching, such as groping, have been found insufficient to constitute harassment when not accompanied by the threat of violence. Keep in mind that although a single incident typically won’t amount to illegal harassment, you still must expeditiously investigate and resolve all complaints to be sure an incident really is an isolated episode. Plus, your quick intervention can help prevent a minor problem from mushrooming into a lawsuit.