An employee alleges she has been subjected to unlawful, sexual harassment and fired in retaliation for complaining of such conduct.  The details and specifics of the conduct I will not repeat here but suffice it to say the appellate court summarized the conduct and gestures as being "of varying degrees of offensiveness...several times a week for well over a year." The lower court descried the behaviors as boorish, moronic, inappropriate, immature and unprofessional. The employee reported the conduct to her team leader and her supervisor. The harasser was talked to and the behavior subsided for a time only to recur.  Finally fed up, the employee took matters into her own hands. She and a coworker advanced upon the harasser, coworker with hammer in hand and in a threatening, intimidating way told the harasser to cut it out. During the investigation the human resources representative learned of the employee's prior complaints to the team leader and supervisor about harassment.  That, however does not negate her own retaliatory conduct and she was fired. 

So why did the lower court find in favor of the employer? That's what the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC, SC) wanted to know, at least in part.  On December 23, 2014 the latter remanded the case to be re-heard. 

The analyses of the two courts provide some good food-for-thought for employers.  

1. Unlawful harassment need not involve touching or be physically threatening where the conduct is humiliating and demeaning.
2. Just because other coworkers are subjected to the same conduct and not offended does not necessarily mean that this employee could not have been unlawfully harassed.
3. Determining whether conduct is unreasonably and objectively offensive so as to be legally actionable "is not answered by a mathematically precise test."
4. Rather, the answer "depends on a constellation of surrounding circumstances, expectations and relationships."
5. As for unlawful retaliation, the question is not whether the adverse employment action was "wise, fair or even correct" but "whether it truly was the reason for the [employee's] termination."

So at the end of the day what have we learned?  It depends. It is important to note that this case involved harassment by a coworker for which the employer is held to a lower standard of liability - basically negligence.  If the conduct had been engaged in by the employee's supervisor we likely would have seen a very different outcome. 

Be proactive.  Train not only your managers but team leaders as well as staff about their rights and responsibilities to refrain from engaging in not only unlawful conduct but "boorish" or "moronic" as well.  Hey, I'm just sayin'.  

Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.

This Month's Private Client Training Programs:

• HR and the Law for Managers, Stevenson, MD
• HR and the Law for Managers, Dunkirk, MD

• If you employ ten or fewer employees you are still exempt from these recordkeeping requirements, regardless of your industry (so you can stop reading now). 
• The list of otherwise exempt industries is now listed by North American Industry Classification System (NAICS) rather than by Standard Industry Classification (SIC) Code.  If you have your SIC Code you can click here for a crosswalk to find your NAICS Code.  
• Once you have your NAICS Code click here to find out if you are a covered employer and required to comply with OSHA's recordkeeping requirements. 
• If you are covered and you employ 11 or more employees, note that the new rule also expands the list of severe work-related injuries that must be reported to OSHA.
• Click here for more information.

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters.