“Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning.“
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Believe it or not, this is not a scene from the new season of Orange is the New Black. It’s actually the opening lines from Orton-Bell v. Indiana, No. 13-1235 (7th Cir. July 21, 2014), an opinion authored by Judge Manion, and one of the more entertaining Seventh Circuit opinions in recent memory.
Still, the allegations in the case read like something from the Netflix show. In addition to the repeated acts of intercourse on the plaintiff’s desk, the case has the following:
offensive sexual comments, such as the comment from the plaintiff’s supervisor that she could not wear jeans on casual Friday “because her ass looked so good that she would cause a riot”;
male employees congregating around the pat-down area to watch female employees receive pat-downs while making harassing comments;
the plaintiff being required to take off her sweater as part of the pat-down process; and
the plaintiff engaging in a sexual escapade of her own, having an affair with her co-worker and having sex in his office.
It was this last incident that got the plaintiff (and her male coworker) fired. Because, although the prison apparently was not concerned with sex by its night staff, the prison superintendent determined that the plaintiff’s affair could “bring dishonor or disrepute” to the prison.
So far, so good. But the story doesn’t end there. Because the prison employees are state employees, they have the opportunity to appeal their dismissals. While the appeals were pending, the state apparently cut a deal with the male employee, enabling him “to resign in good standing, keep all the benefits he had earned, including his pension, and continue working at the prison as a contractor.” This same deal was not offered to the plaintiff. In fact, in exchange for the deal, the male employee testified against the plaintiff at her appeal hearing, which was denied. Further, because she was fired for having sex in the workplace, she was denied unemployment benefits.
The plaintiff filed claims alleging both a hostile work environment and discrimination based on her termination. Based on the variety of harassing conduct she faced, the hostile work environment claim was allowed to go forward. (Interestingly, however, she was not allowed to use the sex-on-the-desk incident to support her hostile work environment theory. Because there was no evidence that the night staff was having sex on her desk because she was a woman, the court determined that the incidents were not evidence that she suffered a hostile work environment on account of her sex.) And based on the disparate treatment she received compared to her male coworker, the discrimination claim was allowed to go forward as well.
In addition to the entertainment value from these soap-opera worthy facts, employers should draw an important lesson from this opinion. Businesses have a legitimate interest in the orderly operations of their workplaces, which extends to taking actions to prevent employees from having sex on the premises. This means it is entirely appropriate to take disciplinary action, including discharge, against employees who have sex during the work day or on the worksite. However, an employer who treats the male offender in such a case more favorably or more leniently than the female offender does so at its risk.
In other words, if you cut a better deal with the male employee than the female employee, you need a good reason to do so. Otherwise you might end up like the Pendleton Correctional Facility, with your dirty laundry being aired for all the world to see.
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