April 01, 2020

Tepid Remarks Crank up the Heat

A customer seems enthralled with an employee at a local retail store.  He repeatedly asks her all sorts of questions: where is she from, what’s her nationality,  where else has she worked, where she lives, and, of course, does she have a boyfriend. You get the idea. For her, it gets a little creepy when she finds the same customer sitting in his idling car in the parking lot.

So, she asks her boss if she could park closer to the store’s entrance to avoid being in the parking lot alone. Guess what the manager says…”No.”  Then, she gets a court order to keep the guy away (the customer, not the manager).  Distraught, the employee takes medical leave…for a year.  After twelve months, the employer terminated her employment.  No surprise, the former employee sues.

One of her several claims was that she was subjected to a hostile work environment.  The employer’s defense was that the behavior was not sexual in nature, nor was it severe; his comments and behavior were tepid.  The court agreed, but not in the way you might think.  “On the scale of vulgarity, the employer is right—unsuccessful Title VII plaintiffs have endured far worse. Yet [the employer’s] argument implies a position inconsistent with our case law: that harassment must be overtly sexual to be actionable under Title VII. To be sure, the alleged harassment must occur because of the plaintiff’s sex…we must decide whether a reasonable juror could find [the customer’s] conduct objectively intimidating or frightening.”  What did the court decide? Yes.

If it is not clear from the fact pattern above, why did the court find the employer could be liable?  The court reminds us, “It bears emphasis that an employer is not vicariously liable for the sexual harassment of its employee by a customer. There must be ‘a basis for employer liability and an employer is responsible for its own negligence if it is reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises … under his control…Employer liability therefore depends not only on what employee did, but also on how the employer responded.”

This case is not new but it has great reminders. (1) Don’t ignore employee concerns just because they may not sound like a big deal to you. (2) When it comes to potential workplace safety issues, considering making an exception to your parking or other policies. (3) Review and reconsider your leave of absence policies. Do they read that an employee “will” or “may” be terminated after being on leave for a pr-determined period of time.  As you ponder,  read the March 26th story to consider the power of one word.