This HR legal news monthly update is brought to you by David Black, HR attorney and Andrew Niederhauser, Group Assistant for the NW HR Best Practices Roundtable. Each month they cover a legal development relevant to the HR profession to provide you with greater insight into law and the practical ramifications for employers. If there is a particular aspect of the law or situation you are interested in having us explore please contact David.
Title VII of the 1964 Civil Rights Act, prohibits discrimination on the basis of sex, including sexual harassment in the form of a hostile work environment.
When determining if a workplace environment is “hostile”, and therefore actionable under Title VII, the following three factors are typically examined:
- Whether the victim was subjected to verbal or physical conduct of a sexual nature,
- That was unwelcome; and
- That was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment. (See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21- 22 (1993).
The New Development
In the recent case of EEOC v. Prospect Airlines (9th Cir., case no. 07-17221, September 3, 2010), the 9th Circuit Court of Appeals held that a female co-worker’s repeated “overtures” and attempts to seduce a male co-worker via verbal comments and suggestive pictures are grounds for a sexually hostile work environment if not properly addressed by management.
Following the death of his wife in September 2001, Rudolpho Lamas began working for Prospect Airport Services, Inc. in April of 2002 as a “passenger service assistant”; helping passengers who needed wheelchairs at McCarran International Airport in Las Vegas. Beginning that fall, Sylvia Munoz, a married co-worker, began a series of unwanted sexual overtures directed at Mr. Lamas, including notes and provocative pictures.
The first note given to Lamas from Munoz in November indicated that she was “turned on” and would like to “go out”. Bothered by the note, Lamas informed their boss, Assistant General Manager Patrick O’Neill who advised Lamas to let Munoz know that he was not interested and to “let Prospect’s managers know if she kept it up, so that they could take care of it.” Undeterred, Munoz delivered a second note and a provocative picture to Lamas indicating she was serious and that he should “give her a chance”. Again, Lamas told her he was not interested and reported the “unwanted actions” to his immediate supervisor, Ronda Thompson. However, the behavior did not stop and Lamas received a third, highly explicit note from Munoz.
At this point, and after months of harassment and pressure from co-workers who began questioning his sexuality, Lamas approached Dennis Mitchell, Prospect’s Manager at the airport. In response, Mitchell informed Lamas that he “did not want to get involved in personal matters”, but would speak to Munoz as “a favor”. Doing little, the harassing behavior became a daily occurrence; causing Lamas to feel “constant pressure” at work. At one point, Munoz made sexual comments to Lamas in front of airline passengers, causing extreme embarrassment for both Lamas and the passengers.
Despite reporting his concerns to four separate managers, no remedial action was taken by his employer. In fact, Prospect’s Assistant General Manager referred to the harassment as a “joke” and that Lamas should walk around singing…”I’m too sexy for my shirt.”
Although Lamas had always been a good employee prior to the start of the harassment, even being promoted from “passenger services assistant” to “lead passenger assistant”, the hostile work environment caused his performance to suffer and in June 2003 he was fired for poor performance. Lamas took his complaint to the EEOC, which found enough factual basis to support a hostile work environment and subsequently filed suit on his behalf.
Lesson for Employers
Unfortunately there is no standardized test or precise formula for determining whether a working environment has become sufficiently hostile or abusive. When faced with a harassment claim or investigation, make sure you document and consider the entire fact pattern; including the duration, type and intensity of the harassing behavior.
Cases such as EEOC v. Prospect Airline Services remind us that management must remain diligent to ensure stereotypes are not driving their reaction, or lack thereof, to claims of harassment from male employees. Harassment is harassment and Title VII protects both men and women.
Andrew Niederhauser, cowrote this article and is the Group Assistant for the NW HR Best Practices Roundtable.