Thursday, September 22, 2011

"Best B*** J**s on the #8 Line" - COTW #59

The latest Case of the Week is a flashback; we're travelling all the way back to late, great, nineteen ninety-eight. Hostile work environment claims based on sexual harassment require that the harassing conduct be subjectively offensive. That is, the Plaintiff must find the conduct offensive and the harassment must be unwelcome.

In Sublette v. Glidden Co., 1998 WL 964189 (E.D. Pa.), the Plaintiff alleged that her co-worker "repeatedly requested oral sex from her and leered at her while making suggestive comments." Also, a shift supervisor "made comments about her breasts," among other things. Sounds like we could have a hostile work environment claim here, right?

But wait... the conduct must be unwelcome and offensive to the Plaintiff. It sounds offensive. But, how can we possibly tell if this particular Plaintiff found it offensive? I'm glad you asked! Maybe the Defendants have evidence of:
1. Plaintiff's crude and vulgar language; 
2. Plaintiff's discussions with her co-workers of her intimate relations with her husband; 
3. Plaintiff's act of wearing a sign essentially saying “Best Blow Jobs on the # 8 line;” 
4. Plaintiff's act of ripping her t-shirt and exposing her cleavage; 
5. Plaintiff's act of wetting her t-shirt and standing in front of a large industrial fan to show off her breasts; 
6. Plaintiff's use of sexual innuendo including her comment apparently offering a “blow job” to a co-worker; 
7. Plaintiff's permitting a male co-worker to imprint his handprint in paint on the back bottom of her t-shirt, on her buttocks; and 
8. Plaintiff's touching of male co-workers on their thigh and buttocks during working hours.
As the title of this post gives away, number three is my favorite!

The Court had "little difficulty" finding that the evidence was relevant and therefore possibly admissible. The Court did, however, reserve the right to examine whether the probative value outweighed any unfair prejudice as the case developed (if not, it may still be inadmissible).

Lesson for employees: be careful how you present yourself at work! For employers: document inappropriate behavior.

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.

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