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Sexual Harassment: Workplace Loaded with Pornography and Bad Language

Posted by Frank Steinberg | Jun 24, 2009 | 0 Comments

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?

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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