Equal Opportunity Spanking Nets New Trial

Posted on January 18, 2008 by Brian Hall

This case exemplifies our reason for creating the Employment Outtakes category. 

A California (where else?)appellate court (see Orlando v. Alarm One) has overturned a jury award of $500,000 in compensatory and $1 million in punitive damages to a 52 year old female on sexual battery and sex harassment claims that  arose out of spankings that she received during the course of "motivational meetings" to encourage the sale of security systems. Apparently, the spankings, among other rather unique motivational techniques, were administered to both male and female employees who performed poorly (for instance, by arriving at work late or not selling enough product) in front of their peers to motivate them  -- and all other employees --  to perform better. According to testimony, the spankings of females typically were accompanied by sexual comments, while male spankings were not. 

Therefore, with respect to the sex harassment claim, the appellate court, noting that males and females were both spankers and spankees, so to speak, held that the trial court's jury instructions were misguided because the jury was not instructed that one of the elements of sexual harassment was that plaintiff was harassed "because she was female." As a result, the court stated that the jury, in reaching its verdict, may have considered all offensive conduct, including conduct that was not gender-related. According to the court, if the jury had considered only conduct that occurred because the plaintiff was female, it might have concluded that that conduct was not “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” So, this case heads back to the trial court, hopefully to provide us with additional amusement.

Now you know where "The Office" gets its inspiration.

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Secretary May Pursue Sexual Harassment Suit for Hostile Work Environment Based on Boss's Video Habit

Posted on December 19, 2007 by Jamie LaPlante

The importance of leaving your personal life at home–particularly if it involves a penchant for pornography–is amply highlighted by the Second Circuit’s decision in Patane v. Clark, No. 06-3446 (2nd Cir. Nov. 28, 2007).  In Patane, the court upheld a female college secretary’s right to pursue a hostile work environment claim under Title VII and state discrimination laws based on her male supervisor’s pornographic video and website viewing habits.  Apparently oblivious to the development of sexual harassment law over the last 40 years or so, the supervisor–who happened to be the chair of the college’s Classics Department–allegedly viewed sexually-explicit videotapes for one to two hours every day on his office television, which was visible to his secretary through a glass partition.  He also left pornographic videos scattered across his office floor, viewed pornographic websites on his secretary’s work computer, and required her, as a part of her secretarial duties, to open his mail, which–you guessed it–included pornographic videotapes that the supervisor had delivered to his office.

Despite these lurid allegations, the trial court initially ruled that the secretary’s claim could not survive a motion to dismiss because the harassment was not aimed specifically at her, was not based on her sex, and did not create a sufficiently hostile work environment.  The Second Circuit, however, disagreed on all counts on appeal. In particular, the appellate court held that the conduct was aimed at the secretary since the supervisor viewed the sexually-explicit websites on her work computer and required her to open pornographic video tapes delivered in his mail as part of her secretarial duties.  The court also held that, based on the facts alleged, a jury could legitimately decide that the conduct was offensive to women and intended to provoke the secretary’s reaction as a woman.  Taken together, these findings allowed the Second Circuit to rule that the conduct could be found by a jury to be severe enough to interfere with the secretary’s ability to perform her job functions.  As a result, the Second Circuit reinstated the secretary’s claim.

As for preventive steps, Internet monitoring or filtering that screens out pornographic material likely would have helped to uncover some of the supervisor’s alleged conduct before it became a major problem.  Even without these tools, though, it is hard to believe that this kind of behavior could have gone unnoticed (and uncorrected), particularly since the secretary claims to have complained about the conduct to the college’s EEO director and an associate vice president over a three-year period.  Indeed, she even showed them a collection of 36 tapes that the supervisor kept in his office.  Obviously, discovery may show that the facts regarding the supervisor’s conduct and the university’s knowledge are not as clear cut as alleged in the complaint.  Nevertheless, if even a small portion of the supervisor’s alleged conduct actually happened, it merited strong preventive measures at the earliest possible moment.  The lesson here is simple: keeping the pornography out of the office will help keep you out of court.
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