- Urging her to go to the beach and wear a bikini,
- Calling her into his office to view images of naked women on his computer,
- Discussing “sex toys” with her,
- Relentlessly urging her to go to a “sex shop” with him,
- Describing her body to clients in a sexually demeaning manner,
- Prying for information about her sex life.
What is ironic is that the employer in this particular case is a labor union and the plaintiff is a staff attorney. But if the employer were not in the business of enforcing employee rights, almost anyone would agree that such conduct, if true, should be enough for the supervisor to be fired, or at least removed from supervisory duties. But is it enough for the employer to be sued for sexual harassment?
The concept of sexual harassment does not appear in Title VII, the original anti-discrimination law. But the Equal Employment Opportunity Commission and the federal courts developed the principle that sexual harassment could be a form of sex discrimination, because it is overwhelmingly directed against women and damaging to them in the workplace. The Connecticut anti-discrimination statute, Conn. Gen. Stat. 46a-60(8), specifically provides that sexual harassment is a prohibited discriminatory practice.
It is obviously discriminatory when a supervisor attempts to condition a woman’s employment on allowing sexual advances or requests for sexual favors, but the accusations in the pending lawsuit seem to involve remarks rather than offensive touching or solicitations of sexual conduct. Even speech can constitute sexual harassment if it substantially interferes with an individual’s work performance or creates an intimidating, hostile or offensive working environment – known as a hostile environment. But not every crude remark creates a hostile environment.
Both the state and federal courts have stated that for a violation of the anti-discrimination laws, the conduct must be such that the work place is permeated with intimidation, ridicule and insult that is so severe and pervasive that it alters the conditions of the victim’s employment and creates an abusive working environment. The courts have held that behavior that is merely immature, nasty or annoying, without more, is not actionable as sexual harassment. Odd as it sounds, the union’s defense in this case can be that the supervisor’s conduct was crass and stupid, but not necessarily illegal.
The take-away for employers from this lawsuit is that the courts are reluctant to impose legal liability for bad manners, so an employer might escape a sexual harassment lawsuit based on a supervisor’s crudeness and vulgarity if it is quickly discovered, ended, and prevented from recurring. But if it builds to the level of the accusations in the pending lawsuit, I would not like the labor union’s chances in front of a jury.