Sexual Harassment: Workplace Loaded with Pornography and Bad Language
The great Supreme Court Justice Oliver Wendell Holmes once defined "law" as "the prophecies of what the courts will do in fact." So in one sense lawyers are prophets, soothsayers, predictors of an uncertain future. Lawyers try to figure out what courts will do when confronted with a unique situation that litigants present for decision.
That's why, in these posts, we often discuss current court decisions. By analyzing what the courts have done in the past, we can make educated guesses about what they will do in a similar future situation. The lessons of these decisions can be applied not only by lawyers, but also by people in a business environment as a guide to arranging corporate policies and practices. Sometimes it helps to have a law degree to figure this stuff out; other times the ability to read and a little common sense works just fine.
Which brings us to today's illustration of self-destructive corporate lunacy, courtesy of the always-vigilant Professor Mitchell Rubenstein of the Adjunct Law Prof Blog. My educated guess is that the company did not have legal advice when it established its unique corporate culture.
The case is Julie Gallagher v. C.H. Robinson Worldwide, Inc. The full court opinion is here.
Suffice it to say that C.H. Robinson had an uninhibited work environment. As the court described things:
Gallagher describes the atmosphere at the Cleveland office of
CHR during her four-month tenure as being much like “a guys’ locker
room” characterized by unprofessional behavior on the part of both males
and females, and an environment that was hostile to women. She
testified to the prevalent use of foul language by mostly male coworkers
who openly and loudly referred to female customers, truck drivers, coworkers
and others as bitches, whores, sluts, dykes and cunts. She
testified that male and female co-workers viewed sexually explicit
pictures on their computers (although the only incident she could
specifically recall was a sexually explicit picture on co-worker Angela
Sarris’ computer during the Christmas holidays), and that male coworkers
left pornographic magazines lying open on their desks.
Gallagher testified that, on several occasions, Starosto brought in nude
pictures of his girlfriend in different sexual poses and shared those
pictures with several of his male co-workers who occasionally brought
in, and shared, pictures of their own with him. She testified that her male
co-workers traded sexual jokes and engaged in graphic discussions about
their sexual liaisons, fantasies and preferences in her presence on a daily
basis.
All of this was too much for Gallagher, who sued for sexual harassment on the basis of a hostile work environment. She lost. The trial court decided that since the sexually offensive conduct was not directed specifically at her, and was engaged in by some women so as not to have been "based on" sex.
On appeal the 6th Circuit Court of Appeals reversed the trial court. The substance of the decision can be summarzied as "gimme a break." "It is obvious," said the court, that the work environment was based upon gender, was more offensive to women than men, and was degrading to women. That was enough to prove Gallagher's case.
So if you run a business, don't be lulled into a false sense of security by the fact that you curse at women and men with equal gusto. The "equal opportunity abuser" defense is on the way out. And don't think that the work environment is not hostile to women just because some women are acting like the boys.
Lesson learned? Anyone care to prophesy about where the law of sexual harassment is headed?