This is the third guest post by my employment law partner, Amy Epstein Gluck.
Grow up, boys!
The Denver Fire Department just paid a former female firefighter $75,000 to settle claims of gender discrimination and sexual harassment.
In 2015, Camilla VonBurkhardt filed a complaint with the EEOC alleging sexual harassment due to:
- Her fellow firefighters (no pun intended) left porn all over the firehouse for her to see;
- These guys made continuous inappropriate sexual comments to her about women; and
- Though many of the incidents occurred in front of her supervisors, not only did they do nothing to stop it, but, she alleged that her superiors themselves then left porn in the bathrooms and in places she was sure to find it.
Good employment practices?
This is all in good fun, right?
No, no, no.
Sexually charged comments made by an employee or supervisor to another employee may subject an employer to liability under Title VII of the Civil Rights Act of 1964 if it rises to the level of sexual harassment and/or gender discrimination.
I hear this a lot—employees want to sue for “harassment” at work. I say, “how were you harassed?” T heir responses vary from “My supervisor yells at me” to “My boss is nicer to Joe than he is to me” and the like. When I ask if they think this is based on their gender, age, a disability, race, or their sexual orientation, they look at me with a quizzical stare.
That’s because Title VII protection only extends to “harassment” on the basis of a protected class, i.e., the discriminatory conduct is unwelcome and based on sex, race, color, disability, religion, or national origin (and, soon, sexual orientation). It is not harassment if your supervisor is mean or rude to you….unless said conduct is based on one of aforementioned discriminatory bases and is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Now, Ms. VonBurkhardt’s case settled out of court, but would it have risen to the level of sexual harassment? Yes, I think so. For a year, pornographic magazines showed up wherever she went in her own place of employment. Her colleagues incessantly and offensively cracked wise about women. Harassment does not have to be of a sexual nature to constitute sexual harassment—it can include offensive remarks about women in general.
Bottom line: there is no place in the workplace for these types of antics and comments. Grow up, boys.
By Amy Epstein Gluck