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.