Ask The Lawyer By: Daniel A. Gwinn, Esq.
TALK ABOUT STRIP-CLUB VISITS DISTRESSES FEMALE WORKER
QUESTION: I’m one of only a few female workers in an office of mostly guys. A couple of men who sit near me often talk about women in what I feel is a demeaning way, focusing on their assessment of a woman’s appearance. A while back, they were laughing loudly as they discussed a visit to a strip club – and they described the women they saw there in pretty graphic and unflattering terms. I asked them to speak more quietly; they looked at me like I was crazy, but they have toned down the volume a bit. I can still hear them laughing, in a kind of dirty way (it’s hard to describe), and can hear enough to know they are still talking about women in a rude way. Often I see them looking at me, and then laughing. I asked my male supervisor if he could do anything, and he kind of shrugged and suggested I was being too sensitive. I am feeling really uncomfortable at work now, and try to find excuses for interacting with these guys, which makes it harder to do my job well. Is there anything I can do?
ANSWER: The kind of talk you describe does not belong in the workplace. At a minimum it is offensive, at worst it is a form of sexual harassment. If your supervisor is not interested in helping you, talk to someone higher up – and specifically mention “hostile environment” harassment and Title VII – maybe that will get their attention.
Harassment is defined as offensive, intimidating or abusive conduct or speech targeted at people in a protected class – members of a certain race, religion, ethnicity, national origin, or gender, etc.—that is intentional, severe and pervasive.
Employees are protected from a hostile work environment under Title VII of the Civil Rights Act, the Elliott-Larsen Civil Rights Act, and the Americans with Disabilities Act, among others. In other words, an employer who tolerates offensive behavior could land an expensive lawsuit. And, your supervisor should note that supervisors can be held individually liable!
Courts have not established a bright line for when rudeness, offensive comments, or casual joking are sufficiently pervasive or severe to constitute harassment. For example, the Fifth Circuit in Buisson v Louisiana Community and Technical College System held that the single use of the word “chink” was insufficiently pervasive and severe, even combined with other annoying acts, where the conduct consisted of isolated incidents. The US District Court in Tennessee (which, like Michigan, follows precedent established by the Sixth Circuit Court of Appeals) recently ruled in Adams v Williamson Medical Center that even where a co-worker’s comments were not particularly severe, hostile environment discrimination was shown where the conduct occurred “all the time.” There, a woman alleged that a hospital co-worker routinely made inappropriate comments, and provided seven concrete examples of this conduct, including that he had made a rude joke about getting a nurse to help a male patient unzip his pants, had placed a cucumber on a chair and invited a nurse to come ride it, and had – while standing at the nurses’ station — described his son’s girlfriend’s genitalia while standing at the nurses’ station.
In a 2014 case out of Indiana, the Seventh Circuit found enough evidence to support a hostile environment claim where a female prison guard alleged that a male prison guard watched as she underwent her daily pat-downs, told her he needed a cigarette afterwards because it was as good as sex and told her not to wear her jeans to work because her “a@@ looked so good it might cause a riot.”
A person who was not the object of harassing behavior may bring a claim of workplace harassment, even where the person to whom the comments were made was not offended. If the female prison guard viewed her male co-worker’s comments as friendly joking, but a co-worker who witnessed the daily scene found it offensive, the behavior could still create a hostile work environment.
Employers would be wise not to roll the dice and try to guess whether they would ultimately be found liable for a complaint of improper or harassing behavior. The cost of defending a lawsuit can quickly run into the tens of thousands of dollars in legal fees. If a case loses at trial, an employer can expect to be hit with damages, which can rise to $200,000 or more, depending on the circumstances. Allowing a “toxic employee” to continue on staff can also be expensive: an article in the Harvard Business Review estimated that such employees could cost as much as $25,000.
As your own situation shows, failing to address harassing or offensive behavior can result in reduced productivity and increased turnover.
Your co-workers don’t have to stop talking about strip clubs or topless bars, or even demeaning women – but they must stop doing so at work. An employer who allows such conduct is just looking for trouble.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law