Labor Letter, March 2013: Pyrrhic Victories

by Fisher Phillips
Contact

King Pyrrhus of Epirus defeated the Roman army in the battle of Asculum, but at great cost.  His comment, “Another such victory would utterly undo me,” applies to employment litigation.

Lawyers are justly proud when they win a difficult discrimination or harassment case.  But after a couple of hundred thousand dollars in legal fees, disruption at work, and harm to reputation, an employer may decide that a few more similar “victories” could shut them down.

Therefore, as every CEO knows . . . the best lawsuit win is to avoid an EEOC charge or lawsuit in the first place. 

A federal judge recently ruled that an atmosphere of moronic and foul behavior would not, standing alone, establish same-sex harassment. The court wrote that: 

The court agrees with the EEOC that Mike’s and Painter’s language crossed the line of social acceptability, even in an all male work environment.  But, this court is unwilling to assist in the creation of a general rule that will expose all employers to Title VII suits like this one.  The mission of EEOC is an important one, but it does not include the cleaning out of all boorish slobs in the workplace.  Bad facts sometimes make bad law, but it will require action by Congress to take Title VII over the great divide that now exists between bad language and same-sex harassment . . . A public policy against offensive language, if constitutional, would make the courts into world policemen.

Great!  I agree with the court. 

But, let’s be clear . . . the foolishness going on in this workplace was unacceptable . . . . this behavior didn’t fit into the “boys will be boys” category.

There was a culture of horseplay and off-color badgering in the all-male warehouse where [Plaintiff] Doe worked.  Not only would the language used by many employees shock a bishop in his robe, but it would have been unpleasant and offensive to any person of tender sensibilities.

***

Doe says that in late 2004 or early 2005 this warehouse banter rose to an intolerable level….According to Doe, in 2005, Mike first referred to him as a “faggot,” and made similar comments almost every day up until 2007,,, Doe says that Mike’s comments included: “come here, fag,” “hey homo,” “look who’s here, d**k s**ker,” and “why does your breath always smell like a**?” … According to Doe, Painter made similar comments….Doe alleges that Painter regularly and routinely used expressions like: “faggot,” “queer,” “homo,” “d**k s**ker, “fairy,” “a** breath,” and go behind the tank and do what [you] do to other men.” … Such nasty talk, in and of itself, does not prove that the people who engage in it, and who aim it at others, actually believe, or have any reason to believe, that their listeners are actually homosexual or have homosexual propensities.  The expression “a** breath” has no homosexual connotation.  It sounds more like a comment on someone’s halitosis.

* * *

Doe was not the only person with whom this word game was played. Doe does not dispute this fact…Doe is 5’10” and weighs between 190 and 220 pounds.  He has tattoos on his arms.  He, as well as other male employees, wore earrings.  Doe was married and had children.  Doe did not carry himself like a woman or act in a manner that could even remotely be described as feminine.  Doe testified in his deposition that he was “just as much of a man as anyone else” and that he gave this impression to everyone, including his coworkers.  Mike and Tipton both testified that Doe did not look or carry himself in any way that would suggest femininity.  Doe even bragged about his way with women.  He gave no one any reason to doubt his manhood.  He did nothing and said nothing to suggest that he was homosexual.

It’s easy to say that this behavior could never happen in your workplace … but could it?  What had the employer done to prevent this behavior? 

The U.S. Court of Appeals for the 5th Circuit made similar conclusions after similar conduct allegedly occurred in a construction workplace: 

[Supervisor] would call [Employee] “faggot” and “princess” and would approach him from behind and stimulate having sexual intercourse while [Employee] bent over to perform job duties. [Supervisor] allegedly exposed himself to [Employee] numerous times.  There is, however, no evidence that either man was homosexual….

However, obtaining this favorable decision probably cost the employer hundreds of thousands of dollars in fees. And even after the 5th Circuit threw out the lower court’s decision, articles still continued to trash this respected company.  I wonder if the complained-of employees and supervisors still work there? 

Our Advice?

  1. Don’t assume that it cannot happen to you.
  2. Men calling each other “gay” and acting like idiots is not okay just because they aren’t really harassing each other over sex.
  3. In blue-collar workplaces of the past, some disputes were settled with fists.  But this is not the 70s and the 80s.  Employers will get sued.
  4. Even in the roughest work setting, do more than post a “No Harassment” policy.  Train supervisors and make sure employees understand that even if they pump out septic tanks for a living, they had better act “professionally.”
  5. Try to strike a balance.  Sure it’s the real world, but none of us think that the behavior described above is okay.  Things didn’t become that way overnight.  These businesses are probably good companies, but what could they have done to prevent this behavior?
  6. The bottom line is that common sense is not common.  We cannot focus simply on instructions “to not discriminate against or harass workers.”  We have to make employees understand that the goal is not to get as close as possible to unacceptable behavior without tipping over into unlawful harassment or discrimination.  Academic as it sounds, we have to train and expect all personnel to use that not-so common sense and to behave professionally.

For more information contact the author at HMavity@laborlawyers.com or (404) 231-1400.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.