Saturday, July 16, 2011

Job Harassment and Sexual Double Entendres -- Evolving Law

From: Enjoy the Ride! Sexual Innuendos Aren't Double Funny.

Every school has a class clown. So, it seems, does every workplace. Sometimes, those jokesters cleverly craft their double entendres so they can be taken either way … sexual or not sexual. But a new court ruling says enough of those coy games. “If a reasonable juror could find that in context such comments took on a sexual meaning,” the joke will be on you in the form of a sexual harassment lawsuit.

Case in Point: Ray Stark and Brian Paonessa worked together at a Florida car dealership. Paonessa allegedly propositioned Stark constantly, using vulgar language to describe his sexual fantasies of them together. Stark complained to a supervisor of Paonessa’s ongoing comments and conduct, which included zipping and unzipping his pants in front of Stark. However, the supervisor felt the behavior was “innocuous” and took no action to stop it or report it up for an investigation.

Stark eventually filed a sexual harassment claim with the EEOC. The employer denied the charges, claiming Paonessa was only engaged in “horseplay and roughhousing” and Stark took his comments “the wrong way.” The employer argued, for example, that when Paonessa told Stark he’d “enjoy the ride,” Paonessa was really referring to “carpooling” to work together, not sexual activities. (EEOC v. Belle Glade Chevrolet, Inc. S.D. Fla. 1/3/08).

How did this case end … and what lessons can be learned?

The court rejected the employers assertion that the double entendre was really a clean comment, “The harassing aspects of many of Paonessa’s comments are mutually reinforcing so that each of Paonessa’s comments were more offensive when considered in the context of the overall pattern of conduct.”

In other words, it’s very difficult to joke around in a sexual manner sometimes and then claim you’re not other times.

Lessons Learned ... Without Going to Court

Innuendos are dangerous. Train your employees that double entendres and innuendos that can have a sexual meaning are prohibited in the workplace. Courts are not dumb. They won’t give employees who engage in disrespectful conduct the benefit of the doubt.

Train managers & supervisors about notice.  Every manager and supervisor today must be aware of their legal obligations to report all harassing conduct consistent with their company’s reporting procedures in order to initiate a prompt and effective investigation to stop the conduct. Had that occurred here, it could have been a very different outcome.

Have “no tolerance” policies. Make sure your anti-harassment & discrimination policy clearly states that your organization has a “no tolerance” standard for any harassment, discrimination or retaliation of any kind. Then back it up with consequences.


Gary Freedman said...

Haha! DOJ -- the joke's on you. The federal government still has to pay me my money. Psychosis by estoppel!!

As for the D.C. Govt -- my Medicaid benefits were just re-approved for the coming year. So you still have to pay out thousands!!

Gary Freedman said...

Psychosis by estoppel:

Gary Freedman said...

Out of all the people I sent this letter to, somebody should have contacted the U.S. Attorney:

Gary Freedman said...

Every court opinion I read emphasizes "context" and "pattern of conduct" in assessing whether specific incidents in the workplace constitute acts prohibited under Title VII.

In assessing job harassment it's probably contrary to law to look at individual incidents to determine the nature and severity of workplace behavior and language.

I argued this very point (with supporting law) before the D.C. Department of Human Rights:

In the case of harassment based on a hostile work environment, the material issue is not the severity or effect of individual acts of harassment, but the pervasiveness of the harassment and the cumulative effect of hostile and intimidating behaviors. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).

"[A discrimination] analysis cannot carve the work environment into a series of discrete incidents and measure the harm adhering in each episode. Rather a holistic perspective is necessary, keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes. 'A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario.' Andrews, 895 F.2d at 1484. It follows naturally from this proposition that the environment viewed as a whole may satisfy the legal definition of an abusive working environment although no single episode crosses the Title VII threshold." Robinson, 760 F. Supp. at 1524.

Respondent’s failure to analyze the totality of the Complainant's hostile work environment, and Respondent’s concentration instead on the severity of individual incidents, was improper. Respondent asserts in the Response (R. 2) with respect to the meeting on October 24, 1991 between Complainant and Respondent's attorney managers: "When asked whether these or any of the incidents he mentioned had a direct impact on him or his employment with Respondent, Claimant [sic] answered that they did not." Respondent’s statement is itself an admission that Respondent's attorney managers failed to conduct an initial interview of Complainant appropriate to the standards of a hostile work environment analysis, and that Respondent's attorney managers improperly focused their attention on individual incidents rather than on the totality of the circumstances.