I’ve always tried for this blog to be apolitical.  That doesn’t mean I don’t have political views — I obviously do — but I don’t think that they should play into or how we look at certain legal issues.

But we need to talk about the recorded comments from Donald Trump because I think employers need to understand that a workplace that tolerates or condones those types of comments — particularly on a regular basis — is just allow a foundation for a sexual harassment “hostile work environment” lawsuit to be established.

I’m not going to rehash the comments here — the definitive Washington Post story on it does that more than adequately — but I wanted to look at it from the legal context.  Trump’s comments at the debate last night that his comments were mere “locker room talk” isn’t going to cut it.

If you’re wondering, first of all, whether the actual grabbing (as opposed to extremely lewd talk) of female anatomy is sexual harassment, the plain answer is absolutely yes.  It’s also sexual assault, as noted by Anderson Cooper last night.

Notably, a lot of the cases that looked at such “physical touching” incidents were from back in the late 1980s and early-to-mid 1990s, when cases around “hostile work environment” were just coming out.

A case is point is Hall v. Gus Construction from 1998, which had this awful set of facts  “In addition to the verbal abuse, male coworkers subjected [the plaintiffs] to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women’s thighs. They grabbed Ms. Hall’s breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her.”

And that was just from co-workers.  The supervisors and the company were responsible because they ignored it.

But what about “extremely lewd” talk from supervisors. Can that be enough?

First, it’s important to understand the standard for hostile work environment claims allegedly created by supervisors.  Employers are generally liable for such harassment by supervisors.  What does this mean?

It means that if, over a four-month period, an employee endured almost daily sexual comments and advances from her direct supervisor, including requests for dates and telling her that her “butt looks good” — that may be enough for a hostile work environment claim.

They key to such a claim is whether the actions were severe or pervasive enough to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).”

Thus, if a supervisor made isolated comments, it typically isn’t enough (though sometimes it is so bad that it can be).  Rather, what courts are looking for is an environment where these types of comments are more the norm, rather than the exception.

Even so, there may a limited defense. To assert this defense, employers must be able to show that:

  • No tangible adverse employment action was taken against the plaintiff.
  • The employer exercised reasonable care to prevent and promptly correct the harassing behavior.
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid the harm.

This defense must be proved by the employer.  But again, in cases where the supervisor is the one who is alleged to be the harasser, it’s a tough burden to meet.

Now, this does not mean that the workplace must be free of all lewd talk; that’s not the law.  An isolated comment, even from a CEO, about a person’s appearance is just not enough to be actionable.

But talk about sexual assaulting women is just something more.   And if employers are thinking that this talk goes on all the time in their workplace and it’s no big deal, it’s probably worth a call to your lawyer — because a lawsuit may just be right around the corner.

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