Ask a Lawyer // April 2018 // Sexual Harassment Case Studies in the #MeToo Era

I for one am glad that the #MeToo movement has not died as so many social media led efforts do. It allows us as a society to continue to discuss the issue and hopefully have a meaningful dialogue about the law, about societal behavior, and about interpersonal relationships.

This month, I thought I would offer up a few scenarios that not only could happen, but have happened (they are all based on either cases I have worked or cases of legal colleagues have worked.) There are no names to protect the guilty and the innocent. These scenarios are about work place harassment. I cannot stress forcefully enough, the law absolutely prohibits both sexual harassment and retaliation against those who report harassment. No person who is the victim of work place harassment should feel as though they are not protected. Both federal and state law comes down quite hard on sexual harassment and the statutes almost uniformly allow for a reporting victim to receive their attorney’s fees if they win in a lawsuit.

Spotting hostile workplace harassment is not the easist thing in the world, but it is far and away the most common type of harassment. These scenarios might help.

Scenario 1

A female worker in a small company of 12 employees is asked every 2-3 weeks by a male coworker (not a supervisor) to go out for drinks after work. The invitations are never more than simply an invitation. The female employee has always politely declined with phrases such as “not today” or “maybe next time” and similar refusals. The female employee is known by all in the company, including the male coworker, to be dating someone outside the office. The repeated requests have started to make her uncomfortable, but she has not formally reported her coworker’s conduct. Is this harassment?

Answer: Maybe, and certainly worth an investigation. The conduct while not overtly sexual could be interpreted as harassment. There is certainly a risk here. The conduct does make the female employee uncomfortable and could be impacting her job performance. But the grey area is that the female has never explicitly told the coworker to stop asking her out so she has not made it known that the conduct is unwelcome.

The Twist: The male coworker invites all of his coworkers, male and female, out for drinks every 2-3 weeks for happy hour and the group goes to a local pub to have a drink or two. Not everyone attends every time, but most of the coworkers do go regularly. All other behavior by the male coworker is appropriate, he just likes to socialize with his coworkers after work hours. In this twist scenario, the invitation is clearly not simply directed at the one female employee and despite her belief that it is harassment, it is not harassment. The male coworker should probably get the hint a little better that his coworker doesn’t want to go down to the pub and stop asking, but it isn’t harassment.

Scenario 2

The local delivery driver comes into the office at least every other day with deliveries. The driver takes a liking to the new woman recently hired as a receptionist who is signing for the packages and asks her out once. The receptionist is not interested and says no. But our wannabe Don Juan takes it upon himself to woo the new receptionist. While not every day but usually once a week or so, the driver brings candies, flowers, cards, small stuffed animals just for the receptionist. The receptionist is not interested at all and says no to each request and has asked the driver to stop. Is this harassment?

Answer: You bet it is and if the receptionist tells HR or a supervisor (which I hope she does) or a supervisor notices the activity, then the company has an obligation to act. One way to do this is to have a supervisor or other manager/owner of the company substitute for the receptionist when the driver comes in one day. The manager should speak to the driver and make clear that his amorous efforts are not welcome by the receptionist or by the company; the wooing must stop, and if the behavior continues, the driver’s employer will be notified. This action may allow the driver to save face, end the behavior and allow the driver to avoid a potentially job-killing report to his employer. Alternatively (or if necessary), the manager can skip the pleasantries and simply ask for a new driver, but be prepared to answer a lot of questions from the driver’s bosses about why you are requesting a new driver.

The Twist: What if the delivery driver is a woman? The sex, gender, sexual orientation or any other trait is irrelevant for the purposes of sexual harassment. The conduct is sexual in nature, pervasive, ongoing and is not welcome. It is harassment and should be handled directly.

Scenario 3

You own a good size design firm and the business side of the firm (sales, account managers, maybe even the technical staff), are a rowdy bunch and work separate from the creative staff. Crude, sexually-based jokes, insults and jibes abound. None of the business side staff, which include male and female workers, ever complain, but you notice that the creative staff, themselves no prudes, seem pretty shaken and upset by the behavior, particularly when the conduct is more extreme than normal.

Answer: You have a hostile workplace claim brewing and it is past time to clamp down on the behavior. This is not your typical spat between business and creative staff. The business staff is setting your business up for a very expensive lawsuit. Talk to the back of the rowdy bunch and let them know the behavior has to end and further conduct like that will be disciplined. Conduct a group counseling and then individual counseling, particularly for the leaders of the group. Then talk to the front of the house creative staff and let them know in no uncertain terms that such conduct is not going to be tolerated, it should be reported to you, and if it happens to them or by them, it will be dealt with accordingly.

The Twist: The CFO, who is also your business partner, acts the same way as the rest of the business staff. The severity of the problem just got one order of magnitude worse for you. First, your partner is an owner and thus subject to liability as a supervisor of all the staff. His or her behavior, if acting inappropriately with the any staff, is a massive potential liability. Next, his or her actions appear to condone the hostile work environment activity, which increases the risk of liability not to mention damages. You will need to have a long talk with your business partner, probably with legal counsel in the room and then take all the actions discussed above.

Key Takeaways

  1. Management and ownership need to be trained to be able to spot potential problems and then to act in a manner responsive to the problem.
  2. Management and ownership need to be careful not to overreact. While harassment is serious and should be taken seriously, often a stern written warning stops the behavior. As discussed in scenario 2, overreaction can cost people jobs (which could raise other risks).
  3. Management and ownership need to be aware that not every interaction is necessarily going to be harassment. The situation may still need addressing from a human resources perspective, but it doesn’t necessarily have to be treated as harassment.

I have some additional guidance for other sexual harassment issues, including what to do if two of your employees start dating (believe it or not, it still happens), as well as some tips about what to include in your employee manual about sexual harassment.


BIO Disclaimer

MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.

THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.

By Matthew S. Johnston
Published April 6, 2018
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