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The Answer to These Five Questions Is No
By Anne E. Larson (from Much More, Winter 2003)
Is it sexual harassment if
- Coworker A says to a female colleague: "You look so good in shorts. I would love to touch your legs"?
- A consultant says, "Looking good, baby" or "Hmm, hmm, hmm" to the same female employee two to three times per week for three years?
- Coworker B frequently stares at a coworker and asks her to perform an exotic dance? What if her supervisor responds, "So are you?" when she complains?
- A supervisor gives a subordinate a casino chip and says, "Whenever you want to go, call me. I'll take you"? What if he brushes against her arm while saying it and his general demeanor prompts her to believe that he is offering to pay her for sex?
- A supervisor leaves a subordinate a note that says, "Be the tough girl that you are"?
The five harassment questions posed throughout this newsletter are based on a recent Illinois district court decision, Caratachea v. Homewood Industries, 2002 WL 31844997 (N.D. Ill. 2002) (Coar, J). The court answered “no” to all five questions. It found that no single incident was sufficiently severe to create a hostile working environment. Even when taken together as a whole, the incidents were not “sufficiently severe or pervasive” to constitute actionable harassment (i.e., to change the terms, conditions or privileges of the plaintiff’s employment). Keep in mind, however, that this is only one judge’s analysis of the facts. Another judge might apply the law differently and arrive at a different result.
The Caratachea court viewed the exotic dance and casino chip incidents as “isolated” and “remotely severe.” Coworker B’s request for an exotic dance was a “mere offensive utterance from the mouth of a teenage boy.” While it did not belong in the workplace, neither was it a federal offense. The court found it unlikely that the supervisor meant the casino chip to be a request to pay for sex. Even assuming that it was, “its obtuse clumsiness ma[de] it less severe than a more direct or even explicit request would be.” Only the consultant’s remarks and coworker B’s stares occurred on a semi-regular basis, and neither the mild remarks nor ogling disrupted plaintiff’s performance.
Did the employer in Caratachea effectively respond to the plaintiff’s complaint about the exotic dance comment? No. In cases like Caratachea where there is no tangible employment action (e.g., discharge, demotion or failure to promote), an employer can establish an affirmative defense to liability by showing that it took reasonable care to prevent and promptly correct the harassment and the employee unreasonably failed to take advantage of these preventive or corrective opportunities. That means it is essential to have an effective anti-harassment policy and complaint procedure in place, make employees aware of it and take prompt corrective measures once an employee complains. Here, the employer had no written documentation that the plaintiff’s complaints had been addressed and appropriate corrective counseling was administered. The initial supervisor to whom the plaintiff complained died before the plaintiff filed suit – so the employer did not even have his testimony. The employer was lucky that the facts were not worse. It also obtained some good admissions from the plaintiff at her deposition. The plaintiff admitted that her now deceased supervisor effectively addressed her complaint regarding coworker B’s ogling, that she never complained to management about the comments by the consultant or coworker A and that the consultant’s semi-regular comments did not affect her performance.
Would the ruling have been different had coworker B touched plaintiff and performed a pelvic gyration after requesting an exotic dance? The EEOC thought so in investigating a recent charge. There, a coworker put his hands on the complainant’s hips and made a pelvic gyration as she leaned over. The EEOC issued a “cause” determination that the complainant was subjected to unwelcome harassment and that her employer had failed to take immediate and appropriate action to protect her following her complaint. The EEOC proposed a Conciliation Agreement to the employer seeking a five-figure settlement for the complainant, sexual harassment training for all employees, and a posting on all company bulletin boards reporting the successful resolution of the charge and the company’s agreement to provide an environment free of sexual harassment and to encourage future reporting of alleged discrimination to the EEOC.
What does all this mean for your business in 2003 and beyond? Prevention is the best tool to eliminating sexual harassment in the workplace. Avoiding litigation and bad outcomes (like the EEOC’s response to the above charge) requires employers to be vigilant in adopting, updating and enforcing anti-harassment policies. Effective enforcement requires regular training of supervisors on risk behavior, retaliation and effective responses to harassment complaints. Caratachea, despite being a win for the employer, reminds us that the employer could have increased its odds of winning at the trial court level had its supervisors been better educated on recognizing and responding to complaints of sexual harassment.
Anne E. Larson, Chair of the firm’s Labor & Employment practice group, concentrates her practice on management-side labor and employment matters and tries discrimination, wage and non-competition/trade secrets disputes in state and federal courts throughout the country. Business owners depend on Anne for anti-harassment training and cost-conscious advice on their hiring/firing practices, employee handbooks, and disability and leave issues. Executives rely on her negotiating skills for their compensation and severance agreements. Anne can be reached at 312.521.2728 or alarson@muchshelist.com.
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