It's all fun and games until someone loses a job

A recent decision of the Sixth Circuit Court of Appeals underscores the importance for employers to be vigilant against inappropriate conduct in the workplace. Even though the employer prevailed in Hensman v. City of Riverview, the Court based its holding more upon the infrequency of the inappropriate conduct rather than upon the inappropriateness of the conduct.

The employee in Hensman had taken a medical "stress leave" after being the recipient of what she claimed was six weeks of sexual harassment, which, she claimed, had resulted in a sexually hostile work environment. The plaintiff acknowledged that her supervisor had never sexually propositioned her or groped or fondled her. Instead, she claimed that the hostile work environment arose from the following conduct:

(1): Her supervisor had hugged her on three separate occassions - twice when he was complimenting her on her job performance, and once after the two of them had had an argument after he had said that he had "sensed a tension between them."
(2): Her supervisor had made comments two separate times about her being "voluptuous."
(3): Her supervisor had said he was too distracted by her beauty to listen to her.
(4): Her supervisor had walked too closely behind her.
(5): Her supervisor had closed the door to his office when he met with her.
(6): When her supervisor had accidentally locked himself out of his office before a meeting with the union president late one night, he called the plaintiff because she was the only other person who had a key to the office. She told him to come by her house to get the key. When he came by at 11:30 p.m., he had told her that she looked cute in her pajamas.
(7): Her supervisor had called her by the wrong name.
(8): On her last day of work, her supervisor had grabbed her arm in anger when she said she was going home because she felt sick.

Even though the District Court threw out the case without a trial, this case illustrates the importance of being aware of perception. The supervisor probably believed that none of his conduct created a hostile work environment for the plaintiff. After all, she did not complain for six weeks - not until the day before her last day. But she perceived his conduct as harassment.

Most of the conduct described above is objectively inappropriate for a workplace. If the plaintiff had complained about it to her supervisor's superiors before her last day, the employer would have had to take some corrective action, such as telling the supervisor to behave more appropriately. If the plaintiff had not left her job but instead endured the inappropriate conduct for a few more months, a court could have easily found that there were enough examples of inappropriate conduct such that such conduct permeated the workplace with discriminatory intimidation, ridicule, and insult.

To reduce the chance of becoming a defendant in an employment discrimination case, employers should be pro-active in training their staff to not engage in inappropriate conduct. Although there is no method by which an employer can be guaranteed that it will not be sued for employment discrimination, a good employment law attorney can show an employer ways to minimize that risk and to improve the employer's defenses to such a claim.