Harmless Banter May Escalate to Harassment

When adults spend an enormous amount of time together, they are bound to have some adult-themed conversation at some point. Much of the time, conversations with sexual content or undertones can be harmless, consensual, and enjoyable. However, when sexually themed comments and conversations become common in a workplace environment, the risk arises that the conversation may escalate and potentially offend some employees. For this reason, managers and supervisors should always try to rein in any type of sexual banter at work.

Consider the following example: a male employee with no ill intentions makes a comedic sexually-themed comment to a female colleague, and the female laughs. Because she laughed, he may be encouraged that she appreciates and is comfortable with that type of humor, and may continue to make similar jokes or comments in the future. The sexual nature of the comments may increase, and though she may become slightly uncomfortable, she does not object or ask him to stop making such comments. Believing his co-worker is completely at ease with sexual conversations, the male employee stops making jokes and begins directing sexual comments at her by inquiring about her sex life or commenting on her body. He reaches out and touches her to illustrate remarks about her body, and begins regularly leering at her. Now highly offended, the female employee files a formal complaint of sexual harassment.

These are the actual facts of a case brought by the Equal Employment Opportunity Commission (EEOC) against the office of the Governor of Alaska for sexual harassment of one Special Staff Assistant against another. Had the original sexually-themed jokes never occurred or been discouraged, perhaps the office could have avoided the case altogether.

Companies should try to avoid harassment lawsuits

Fashion house Gucci recently faced a similar—and unwarranted—sexual harassment claim. After a male employee was legitimately fired due to his demeanor at work, he brought a claim alleging that workplace banter regarding a supervisor’s sexual orientation had created a hostile and offensive work environment for him. Though the court decided that such banter did not, in fact, create a sexually hostile work environment, Gucci still had to dedicate time, money, and energy to defending the claim in court. The company could have possibly avoided the entire ordeal had they worked to control sexually-themed banter to begin with.

Employees may also do their part to avoid escalation to sexual harassment. One employment law attorney advised employees to always pretend they were speaking with their first grade teacher or mother, and to edit the content of the conversation accordingly. If conversations do not have any sexual connotation at all, you will never risk sexually offending someone. Furthermore, if any conversation makes you even slightly uncomfortable, speak up and inform your co-worker immediately that you would like that conversation or behavior to cease, and would not appreciate similar conversations in the future.

Finally, if you do believe you have been sexually harassed at work, it is important to contact an experienced employment law attorney at Pershing Square Law Firm as soon as possible for help.

California Teacher Claims Harassment, Retaliation by Public School District

Harassment based on sex can take many forms.  The most commonly thought of form of sexual harassment actually has a sexual motive and may include unwanted propositions, inappropriate remarks, conduct, or physical conduct.  However, some sexual harassment does not have to be sexually motivated and may simply be due to a person’s gender, such as making offensive comments about men or women in general.  Furthermore, harassment based on sexual orientation, gender identity, or nonconformity to gender stereotypes is also included under the sex harassment umbrella.  One California teacher has recently filed a lawsuit against a public school district, alleging harassment and retaliation based on her sexual orientation.

Julia Frost worked as a probationary English teacher at Sultana High School in the Hesperia Unified School District in San Bernadino, CA.  Frost is openly lesbian and also worked as a sponsor for the Gay/Straight Alliance, an extracurricular group intended to provide a supportive and safe group for LGBT youth and straight allies.  Frost was ultimately terminated and filed a lawsuit against her former employer for harassment and retaliation.

Harassment Claims

In her complaint, Frost alleges that school administrators generally created a hostile environment for all LGBT persons, students and teachers alike.  She claims that when gay students complained to administrators of bullying because of their sexual orientation, administrators discouraged the complaints and instead threatened to “out” the students to their parents.  Frost claims that the Gay/Straight Alliance was purposely left out of a school activities handbook and that the announcements of the group were heavily censored.  In addition to harassment and discrimination against the students, Frost experienced similar discriminatory actions herself.  The alleged harassment against Frost includes:

·         Coworkers asking if she was the male or female in her same-sex relationship

·         Being accused and investigated for “teaching homosexuality”

·         Having administrators frequently observe her classroom to make sure she was not teaching “gay things”

Frost claims that school officials’ actions against LGBT teachers and students were discriminatory, offensive, and created a hostile environment that meets the standard for harassment.

Retaliation Claim

A student came to Frost and told her that another teacher had made the statement “That’s so gay” in a disparaging way and had instructed him to “take the gay headband off.”  Frost helped the student print out, complete, and file a complaint form against the teacher for the homophobic comments.  Shortly thereafter, the principal called Frost into his office and stated she was not a “good fit” for the school and that her contract would not be renewed.  Frost claims she was terminated in retaliation for helping to lodge a complaint against another teacher.  Both the American Civil Liberties Union and Lambda Legal are helping Frost file the lawsuit and we will wait and see the outcome of the case.

Discrimination, harassment, and retaliation based on a person’s sex is illegal and is never acceptable in the workplace.  If you believe you have been the victim of any type of unlawful discriminatory action at work, you should contact the employment attorneys at Pershing Square Law Firm as soon as possible for help.

California Broadens Workplace Sexual Harassment Protections

The California Fair Employment and Housing Act (FEHA) protects workers in this state from sexual harassment at work.  Some of the behaviors that violate FEHA may include:

●     Unwanted sexual advances or propositions

●     Asking to exchange sexual favors for employment benefits

●     Threatening adverse employment action if sexual advances are turned down

●     Making derogatory comments, slurs, or jokes

●     Verbal commentaries regarding a person’s body

●     Discussing a person in a sexually degrading manner

●     Leering or making inappropriate sexual gestures

●     Displaying suggestive or offensive pictures, posters, or cartoons

●     Writing sexually obscene notes, emails, or invitations

●     Unwanted touching, groping, blocking, or other forms of physical assault

In August of this year, California Governor Jerry Brown signed Senate Bill 292 into law, which would amend the sexual harassment provision of FEHA.  SB 292 will add the clarification that “Sexually harassing conduct need not be motivated by sexual desire.”

Kelley v. Conco

This new clarification of the law follows the decision in a recent sexual harassment case, Kelley v. Conco Companies.  In that case, Patrick Kelley worked for Conco on various jobsites.  Kelley claimed that a male supervisor made repeated, highly graphic, sexually demeaning comments to him after he made a mistake on the job.  Other male coworkers joined in with the offensive and obscene sexual comments.  Kelley reported the offensive conduct to another supervisor who informed him, “That's just the way these guys are.”  For weeks after Kelley complained about the harassment, many other coworkers repeatedly called him “gay” and a “snitch” and physically threatened him on a regular basis.  Kelley filed a lawsuit for sexual harassment and retaliation under FEHA.

In that case, the trial court decided that Kelley could not show sexual harassment and the Court of Appeals affirmed the decision.  The court reasoned that not all demeaning, crude, offensive, or sexually-related comments automatically fell under the definition of sexual harassment.  The court also stated that Kelley had not shown that the comments came from a place of sexual desire or intent toward him from his supervisor or coworkers.  Furthermore, the court determined the comments did not directly stem from Kelley’s actual or perceived sexual orientation.

New Protections

Wanting to avoid a repeat of the Kelley decision, California Senate Majority Leader Ellen Corbett wrote and introduced SB 292 in an effort to broaden sexual harassment laws and ensure the laws protect all employees from sexually offensive conduct.  No employee should have to endure vulgar or obscene comments or gestures at work, regardless of the motivation behind the conduct or the gender and sexual orientation of the victim.  The new clarification in FEHA aims to guarantee that all California employees better receive full protection under the existing sexual harassment laws.

SB 292 and the revisions of FEHA will go into effect starting January 1, 2014.  Hopefully, the new version of the law will serve as a reminder that to employers that sexual harassment may take many forms and thus employers should have zero tolerance for harassment of any kind.  If you believe that you have suffered any type of harassment at work, do not hesitate to contact Pershing Square Law Firm as soon as possible.