Sexual Harassment — Activities Outside the Workplace, Quirky Question # 32

Quirky Question # 32:

I am an attorney in the Law Department of an advertising agency.  I recently learned in a roundabout way that one of our female employees is a motorcycle enthusiast.  For the last few years, she has taken time off from work to attend the motorcycle rally in Sturgis, South Dakota.  This year, someone at work was surfing the Web and looked at various Sturgis websites.  (I’ve since learned that there are more than 1000 Sturgis websites, many of which contain photos.)  Our employee was pictured in photos on a number of the Sturgis websites and in many of them she is not wearing much (if any) clothing.  Some of the photos are quite suggestive.

One of our employees downloaded several of the photos and circulated them via email to other employees in our office.  One employee is using one of the pics as the “wallpaper” on his computer.  A number of our employees have been asking our Sturgis enthusiast about her experience and what “really goes on at Sturgis,”  Not all of the questions are in good taste.  Other employees (mostly, but not exclusively, male) have been teasing our employee quite a bit (sometimes crudely) about her Sturgis trip.  She recently reported to me that she finds their comments both offensive and irritating.  My initial reaction was “What did you expect?”, but I did not express that sentiment to her.  I’ve informally asked some of the guys to tone it down, but I’m not sure I’m getting through to them.  What recommendations would you make regarding how this should be handled?

Dorsey’s Analysis:

As you undoubtedly realize, if you are not able to bring the offending conduct to an end, your company may be confronting a sexual harassment claim.  As you pointed out, your employees are engaging in various types of offensive conduct: a) asking questions of your “motorcycle enthusiast” that are inappropriate; b) “teasing” your female employee, sometimes in a crude manner; c) downloading pictures of your female employee from the Sturgis website and circulating them to others within your workforce; and d) using one of the pictures as “wallpaper,” (the background image) on a computer.  In short, all the behaviors you are describing sound like fairly standard “hostile work environment” sexual harassment.

Exacerbating the situation from a potential liability standpoint is that your employee already has complained to you.  Given your position as an attorney in Law Department, your knowledge will be imputed to the corporation.  Moreover, you have described the fact that you have attempted to take action to address some of the concerns expressed by the offended employee (“I’ve informally asked some of the guys to tone it down . . ..”), but that you are not getting the hoped-for response.

In sum, you have a harassment complaint, the company is on notice, and the problem has not been rectified.  In my view, you need to respond more aggressively to the problems that have been brought to your attention.  This includes the four distinct issues of which you have been made aware: a) teasing; b) crude comments; c) circulation of pornographic materials via your company’s computer system; and d) display of a photo of a (partially ?) naked woman on a computer screen.  If an investigation is necessary (you already may have all the facts you need), you should conduct one promptly.  To the extent that you confirm the allegations that have been brought to your attention, you should discipline the employees who have engaged in the problematic conduct.  I recommend that you ignore the fact that some of the offending conduct arguably was precipitated, in part, by the non-work-related behaviors of the complaining employee.

In sexual harassment cases, you must distinguish between the work-related behaviors of your employees and the non-work-related behaviors.  The non-work-related behaviors are largely irrelevant to the sexual harassment analysis.  The fact that one of your employees is a motorcycle enthusiast, who enjoys the Sturgis rally, and who engages in behavior while in Sturgis that is radically different from her workplace conduct, does not mean that she is fair game for inappropriate, harassing workplace conduct.

The most directly analogous case of which I am aware is a decision out of the Eighth Circuit Court of Appeals, Burns v. McGregor Electronic Industries, Inc., 995 F.2d 559 (1992).  The plaintiff, Lisa Burns, was a victim of substantial (often outrageous) sexual harassment by a number of employees, including the company’s owner/President who was more than 40 years her senior.  Compounding the problem of her treatment in the workplace, she had posed nude for a couple of motorcycle magazines.  This resulted in significant additional abusive conduct directed toward her.  Despite these facts, the District Court granted the employer summary judgment.  In an opinion deferential to the District Court, the Eighth Circuit reversed and remanded, but noted, “Our disposition of this case should not be read as constituting a de facto entry of judgment for Burns.”

That was the first Burns opinion.  The following year, after the District Court again dismissed Burns’ lawsuit, the case was back in the appellate court (989 F.2d 959 (1993)).  The second time around, the appellate court was not quite so deferential.  The Eighth Circuit was understandably troubled by the fact that the District Court was unable to distinguish between Burns’ conduct outside of work and her treatment at the workplace.  The trial judge seemingly could not get over the fact that Burns had posed nude for a magazine, concluding that, given her behavior, she could not have been offended by her treatment in the workplace.  The appellate court stated:

“The plaintiff’s choice to pose for a nude magazine outside work hours is not material to the issue of whether plaintiff found her employer’s work-related conduct offensive.  This is not a case where Burns posed in a provocative and suggestive way at work.  Her private life, regardless of how reprehensible the trier of fact might find it to be, did not provide lawful acquiescence to unwanted sexual advances at her work place by her employer.”

In the second opinion, the Eighth Circuit gave up on the trial judge, and reversed and remanded with a directive that judgment be entered for the plaintiff, Lisa Burns.

As the Burns decision illustrates, for the most part, an employee’s activities outside the workplace are irrelevant to the issue of whether he/she is a sexual harassment victim in the workplace.  The one part of the analysis where this conduct may be considered is when evaluating whether the employee found the behaviors “subjectively offensive.”  As was addressed by the U.S. Supreme Court in a post-Burns decision, in a typical harassment case, an employee must establish that the behaviors were both “subjectively” AND “objectively” offensive.  For example, with regard to the subjective standard, an employee who initiated a lot of sexual banter in the workplace may have difficulty establishing that she was personally offended by sexual banter.  With respect to the objective standard, an employee needs to demonstrate that she is not having a hypersensitive, idiosyncratic reaction, but rather that the behavior would have offended a “reasonable” person.

In the fact pattern presented by your question, you can argue that a person who allowed herself to be photographed nude, in provocative positions, at the Sturgis rally, with the knowledge that her pictures were likely to be displayed on the world wide Web, is not likely to have been “subjectively” offended by the conduct of her co-workers.  Absent a direct linkage, however, to her conduct in the workplace, that argument is likely to be unpersuasive.  The fact that your employee elected to behave in one way at a motorcycle rally in another state hardly suggests that she was inviting offensive conduct in the workplace, where she has had a very different persona.  Given that fact, I suggest that you take her complaints of offensive conduct seriously, take steps to ensure the offensive conduct stops, and discipline the employees who engaged in the conduct described in your question.

Dorsey & Whitney

Dorsey & Whitney

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