Publications
NOT EVERY SEXUAL ADVANCE CONSTITUTES SEXUAL HARASSMENT
A female plaintiff worked as an attendant at a parking garage for about a year and a half. Early on, she claimed that the assistant manager sexually harassed her by commenting on her looks, and asking her to spend the evening with him. A few months later, the plaintiff claimed that the assistant manager offered to provide her with extra money to care for her children if she would go out with him. A few months after that, the plaintiff claimed that the assistant manager again propositioned her, and a few months after that she claimed that the assistant manager patted her on the behind when complimenting her for writing a good report. The plaintiff said that she repeatedly complained of the assistant manager's behavior, but the manager did nothing to stop the harassment.
Most employers know that they can be liable for tolerating a "hostile work environment." The legal principle is easy to articulate and remember. But how do you apply it? How hostile does the environment have to be before it becomes a liability problem? This is a real, everyday problem for employers. Do you have to police typical male-female flirting? How far can you let it go? Can you tolerate any boorish or offensive behavior, or do you have to get rid of any employee who crosses the line, even once?
A federal court in Philadelphia recently found that as "loathsome and inappropriate" as the assistant manager's conduct was, it was not enough to provide the basis for a lawsuit. To prove a hostile environment claim, the judge wrote, "the discrimination complained of must be pervasive and severe enough to alter the conditions of the victim's employment and create an abusive working environment." The court stressed that the plaintiff complained of "only" four incidents over an approximate 18-month period, and "only" one instance of unwelcome touching. These incidents, the judge wrote, "may have been annoying and undoubtedly unwelcome, but they cannot be characterized as patently offensive or severe."
Whether or not one agrees with the opinion, it is characteristic of the current swing of the pendulum. Sexual harassment cases will continue to be prevalent, particularly "quid pro quo" cases in which an employee can prove that his or her job was directly affected because of the failure to yield to unwelcome advances and similar conduct. But insofar as "hostile environment" cases are concerned, courts seem to be trending toward the view that the workplace need not be sterile or, even, palatable, and that the law will not intervene until the environment becomes substantially intolerable.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
