New case: Locker Room Talk Not Sexual Harassment!?!

New case: Locker Room Talk Not Sexual Harassment!?!

This company won the lawsuit, but they lost in so many other ways: with current and potential customers, current and potential employees, lost time, productivity, and attorneys fees. The lesson: stay out of court by honoring each other’s dignity

A sexually-charged, locker room atmosphere is merely offensive, not sexual harassment. A co-worker’s drunken advances on one night also are not sufficiently severe or pervasive to constitute harassment. That’s according to the 7th Circuit of the U.S. Court of Appeals in a decision released on December 26, 2018.

Amy Swyear worked as an outside sales representative. One of her managers testified that he believed the Lord believed that men are supposed to be the protector of the female gender. Nonetheless, Amy frequently heard her co-workers refer to a woman customer who ran a concession called “Conti’s” as “Cunty.” Another female customer was referred to as “Big Tittie Blonde Carnie.” The staff also openly discussed the sexual activities of outside sales representative Russell Scott and disparaged the women he associated with.

The Court said:

“Swyear argues the environment at Fare Foods, as a whole, was permeated with sexism sufficiently severe and pervasive to create an abusive work environment. Although we recognize the environment at Fare Foods was at times inappropriate and offensive, we do not believe Swyear has met this high bar. This Court has held that “occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers generally does not create a work environment that a reasonable person would find intolerable.” Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002). The vulgar nicknames and the discussions of Russell Scott’s romantic life fall into this category. The nicknames were not directed towards Swyear, nor were they used to physically threaten or humiliate her. Rather, they were crude and immature jokes that typically do not result in employer liability.

“Additionally, the discussions of Russell Scott’s romantic relationships were inappropriate and in poor taste, but they also lacked severity and were infrequent. When asked how often these discussions took place Swyear responded, “I wouldn’t know that I would say at least once a week, but it seemed like an ongoing joke.” Furthermore, no one ever discussed the topic with Swyear directly, she merely overheard other employees joking about it. This militates a finding that the conversations were “merely offensive,” as opposed to physically threatening or humiliating to Swyear. …

“Swyear was not given an offensive nickname herself, but merely heard people using them while she was in earshot. This Circuit has aptly pointed out, “The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them.” Yuknis v. First Student, Inc., 481 F.3d 552, 556 (7th Cir. 2007).”

When Swyear was directly affected, the Court still did not find harassment. She and Scott, the same co-worker about whom jokes were made, were on the road and staying at a hotel when he started coming on to her. Scott followed Swyear into her room claiming he wanted to check the air conditioner because the room was warm. To avoid spending time with Scott in her room, Swyear suggested they head to dinner. On the way to dinner Scott began acting in a way that implied he believed the two were on a date—touching Swyear’s arm, pulling her chair out for her to sit, placing his hand on her lower back, standing in close proximity. Scott had three beers during dinner and told Swyear several times that he was single. According to Swyear, Scott also became unsteady on his feet and began slurring his words as a result of the drinks.

After dinner the two took a self-guided tour of the hotel. When they walked by the pool Scott suggested they go for a swim. When Swyear stated that she did not bring a swimsuit, Scott responded by implying they could go skinny dipping. Swyear declined this offer. On the way back to their rooms, Scott again touched Swyear’s back which made her uncomfortable. Upon arriving at their rooms Scott made his way into Swyear’s room. Scott crawled into Swyear’s bed and told her he liked to watch movies and cuddle. Scott suggested Swyear needed a “cuddle buddy” and that they could share a bed.

Swyear declined and told him she was tired and wanted to go to bed. Scott left, but returned and knocked on Swyear’s door multiple times. To avoid further contact with Scott, Swyear pretended to be in the shower. Scott then called Swyear, but she decided not to answer. Swyear answered a subsequent call from Scott and he asked what she was doing. She responded that she had taken a shower and was planning on going to bed.

The Court held:

“The incident with Scott reflected entirely inappropriate behavior by a coworker, but does not constitute sexual harassment alone or when considered with the above-described incidents. Scott’s actions were not severe as compared with acts this Court has found sufficient to create a hostile or abusive work environment. See e.g., Hostetler, 218 F.3d at 809 (plaintiff’s coworker held her face in his hands, forced his tongue into her mouth and when she used her body to shield herself he began to unfasten her bra, stopping only when another employee entered the office); Smith v. Sheahan, 189 F.3d 529, 532 (7th Cir. 1999) (a coworker physically assaulted the plaintiff and had a history of verbally abusing female coworkers). Here, Scott’s actions were much less threatening and severe—in particular, none of his actions were forceful and Swyear testified that she always felt she was in control of the situation. Cf. Hilt–Dyson, 282 F.3d at 463–64 (plaintiff’s allegations that a supervisor rubbed her back, squeezed her shoulder and stared at her chest during a uniform inspection while telling her to raise her arms and open her blazer were isolated incidents that, even when taken together, did not create a hostile work environment); Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th Cir.2002) (plaintiff’s complaints of eight gender-related comments during course of her employment, including that “the only valuable thing to a woman is that she has breasts and a vagina,” was insufficient to demonstrate a hostile work environment). Scott certainly crossed far beyond the line of acceptable workplace etiquette, but his actions were not as offensive as this Court has required to constitute a hostile or abusive work environment.”

What this means to you: This case only applies in the 7th circuit—Indiana, Wisconsin, and parts of Illinois. Other circuits would take a different view. But this case illustrates why I focus on creating workplaces of respect and dignity.  This company “won” the lawsuit, but they lost in so many other ways. How will their customers react to knowing the nicknames they were called? Will other customers want to do business with them? Will the company attract the best candidates—male or female—knowing they have to endure a locker-room atmosphere? How is the morale of current employees knowing their company spent thousands of dollars defending this behavior?

The law sets a floor for behavior, not a ceiling. The lesson of this case is we can stay out of court if we honor each other’s dignity.

By R. Makana Risser Chai

Makana Risser Chai is a trainer, HR consultant and former Silicon Valley attorney who specializes in teaching courses on creating respectful workplaces by preventing harassment, bullying, disrespect, and unconscious bias.