Thursday, April 14, 2011

STFU "We Want Boobies" (It's the Employer's Response that Counts) - COTW #36

The latest Case of the Week helps illustrate that an employer's strong response can overcome potentially harassing conduct. Fair warning: the facts of this case may be offensive to some (although apparently some combination of not objectively offensive enough and not severe and pervasive enough to constitute a hostile work environment!).

The plaintiff was a student football team manager at Hofstra who was trapped travelling on the team bus when the following scenario played out (per her deposition testimony):
[A movie was shown in which] there were numerous sex scenes that continued to be more graphic in nature. And players making lewd comments and howling and talking about how they wanted to get laid and oh, nice tits. And then there was a particular scene that was shown where a white woman was masturbating to a black man who was in the shower. And this player, Eric Taylor, turned around in his seat and said to me, this is what you white women want, our black dicks. That shit will make you go crazy. And then everyone started laughing. And I just burst into tears and crying. And I was humiliated and embarrassed and upset.
She complained to an assistant coach while the players chanted "we want boobies" and Eric Taylor told her to "sit down and like shut the fuck up."

Sound like a tough situation? Believe it or not, there were even more bullying and harassing incidents. But, as I mentioned, the Court was not even convinced that the acts could constitute a hostile work environment (which I find rather remarkable). More importantly, even if there was a hostile work environment, the response of the coaches saved the school from liability.

The assistant coach to whom the plaintiff complained immediately shut off the movie and told the players to quiet down. "Within 48 hours of her complaint, [the head coach] performed an investigation and removed Taylor from the team." Title VII requires remedial action, and that's what the coaches did. Accordingly the Court held that "no reasonable jury could impute that liability to Hofstra."

Of course, managers want to prevent harassing conduct before it happens. That's not always possible. When employees misbehave, the managers' reactions may still save the employer from liability. Employers should plan in advance to respond to misconduct in the future.

Shameless (but related to this post) plug: I'll be hosting the HR Hero audio conference Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying on April 28, 2011. Sign up today!

Interesting university law side-issue: The Plaintiff was a grad student with a $700 stipend, which was sufficient to establish that she was an employee capable of bringing a Title VII suit.

Citation: Summa v. Hofstra Univ., CV 08-0361 WDW, 2011 WL 1343058 (E.D.N.Y. Apr. 7, 2011)(copy here).

HT: Andrew Slobodien (@LaborLawLawyer) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.