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Employers pay when employees refuse to keep their roving hands and sexual thoughts to themselves

June 19th, 2014  |  Lorene Park

By Lorene D. Park, J.D.

As I sort through employment law decisions to help choose which ones to cover in Employment Law Daily, I am often struck by the sheer number of sexual harassment cases. It would seem that many individuals never learned a fundamental lesson imparted by parents or kindergarten teachers: keep your hands to yourself. There are also those individuals who feel the need to tell others at work what they would like to be doing with their hands (or other body parts). Sad but true — it often falls to employers to weed out employees who never learned to keep their hands to themselves (and to keep their sexual thoughts to themselves). Otherwise, the employer may be on the hook for other employees’ damages.

Physical contact. In one case, a federal court in New York found the detailed and overwhelming evidence of disturbing sexual harassment, which culminated in a violent sexual assault by a coworker, compelled summary judgment in favor of three restaurant employees. Moreover, evidence that the restaurant manager laughed along with the harassers was enough to grant summary judgment to the employees on their state law claim against him individually as well (D’Annunzio v Ayken, Inc dba Ayhan’s Fish Kebab Restaurant). In another recent case, a federal court in Louisiana denied a dental practice’s motion for summary judgment on the sexual harassment claim by a dental assistant who felt compelled to quit after the dentist’s sexual advances culminated in him forcibly grabbing and fondling her breasts (Nastasi v Ilawan). Can someone please tell me who would NOT feel compelled to quit? Anyone?

These cases are not limited to male-on-female harassment either. In one federal case, a female police officer whose female sergeant made repeated sexual advances and eventually attacked the officer when those advances were rebuffed, survived a motion to dismiss her sexual harassment claim against the city of New York (Bethea v City of New York).

Though many courts find unwanted physical contact to be particularly persuasive when it comes to determining if there is actionable sexual harassment, touching is sometimes not enough. For example, two incidents of alleged “butt-touching” on one day, even considering that the employee who was touched alleged that other employees told her of several similar but unreported incidents, simply were not objectively severe enough to alter the terms and conditions of her employment, concluded a federal district court in Alabama, granting summary judgment to the employer on her hostile work environment claim (Stallworth v Guyoung Tech USA, Inc). A federal court in Texas essentially came to the same conclusion in dispensing with the sexual harassment claims of a male nursing home employee whose rear end was slapped twice by a female coworker. The alleged harassment was simply not severe or pervasive enough to be actionable (Jones v Divercare Afton Oaks).

Words and images. In other cases, sexual harassment claims proceed solely based on evidence of sexually-laden comments, images, or messages in the workplace. For example, a federal court in South Dakota refused to dismiss the hostile work environment claim of an employee who was sent three sexual images by a project manager who also made sexual comments and gestures, including that he could do whatever he wanted (Houck v ESA, Inc). In another case, a federal court in New York refused to dismiss a male employee’s hostile work environment claim where his female boss frequently commented on his body (including his V-shaped back) and on his “lucky” wife, all while making seductive facial expressions (Cruz v New York State Department of Corrections and Community Supervision). And in one case that makes all lawyers look bad (as if some lawyers needed the help), the Ohio Supreme Court suspended for one year an attorney who sent sexually explicit texts to his law clerk, suggesting not only that she perform sexual favors for him but indicating that her job depended on compliance (Lake County Bar Association v Mismas).

The best defense. Employers that want to avoid liability will address sexual harassment immediately and effectively. Having a clear policy defining sexual harassment and prohibiting it is not enough. The policy must be enforced. Treat all complaints seriously and fully investigate, using an impartial investigator. Also, take intermediate measures during the investigation to protect the employee who complained. At the conclusion of the investigation, take appropriate disciplinary measures if called for and follow-up to make sure the measures worked and the harassment stopped.

An effective anti-sexual harassment policy, well enforced, does not just benefit employees; it also gives an employer the chance to defend a sexual harassment suit with the Ellerth/Faragher affirmative defense (for laypersons, this involves avoiding liability by showing the employer exercised reasonable care to eliminate harassment and showing the employee unreasonably failed to take advantage of preventative or corrective opportunities). Even if the Ellerth/Faragher defense turns out to be unavailable, the responsive and corrective measures taken by an employer to end harassment can go a long way to limiting subsequent liability.