Manager Making Sexual Comments Several Times Per Year Did Not Sexually Harass Employee
A federal court in DC recently dismissed a case (Copeland v. District of Columbia, Case No. 14-1708, United States District Court for the District of Columbia) filed by a female employee of the DC Department of Corrections alleging discrimination, sexual harassment, and retaliation.
The court found that the claims of discrimination and retaliation failed for a variety of reasons, some procedural. But the interesting part was the court's finding about the hostile work environment claim. The plaintiff alleged that her manager made a number of unwanted and unlawful sexual comments over a two year period including:
that he said "You have to kiss me in order to get a job" during her performance evaluation after she said she was interested in moving to a different position;
that he said that another female employee could "sit on his lap" at a luncheon where only one seat was available;
that he told the plaintiff that "[a]ll of the case managers have big butts, except for you;"
that he told the plaintiff: that she "still got it after all these years;" "[l]ift up your your jacket and let me see what you're working with;" "[y]our hair is beautiful;" and "[y]ou look good in your clothes;"
that he repeatedly asked the plaintiff to go hand dancing with him at a club.
The plaintiff could not recall exactly when all the comments were made, but said they were made about every six months, and that the hand dancing requests were made sporadically on Fridays after work.
The court held that the plaintiff had no case. Noting that for a claim for hostile work environment to succeed the offensive conduct must be severe and pervasive, the court found that these admittedly inappropriate comments made a few times per year didn't amount to legal sexual harassment, even when taken together. In making its ruling, the court cited to a number of other cases where there was a finding of no hostile work environment including cases where:
a co-worker made compliments regarding a female employee's appearance, several inappropriate suggestive comments, and one crass sexual joke about oral sex;
a female employee was subject to five incidents of sexual harassment over an eighteen-month period including a co-worker touching her and attempting to kiss her, a co-worker touching her thigh, a co-worker asking her on a date, and a co-worker calling her beautiful;
a co-worker caressed a female employee, placed her breast on his arm, and placed her fingers on his buttocks.
You may be left scratching your head at this ruling, thinking about all the times your HR people and your lawyers have told you to reprimand employees for doing far less than what the manager here did. That's because these kinds of cases are so factually dependent and it's hard to predict whether a judge or jury might latch on to one particular fact to sway it's decision. It's much better legally and morally to not let this type of behavior occur.
And, just because particular behavior may not be legally actionable doesn't mean that you should tolerate comments or actions that go against your values. I don't think this type of behavior should be tolerated at any level, and in most cases the behavior of the manager in this case would violate a Code of Conduct and be grounds for disciplinary action.
What this case shows, however, is that if for some reason you do allow this sort of behavior to occur (hopefully inadvertently), there is legal precedent that could support a defense. Let's just make sure there is enough seating at staff lunches.