My partner, Amy Epstein Gluck, weighs in with another guest post below!
Telling a female employee she’d be “raped into submission” is a bad idea. Oh yes, it’s also illegal.
But can “cultural differences” or a twisted sense of humor form a defense?
I’m going to go out on a limb here and say NO. Dude, no.
Think I’m kidding about a case like this?
CEO Gustavo Martinez of New York’s advertising company J. Walter Thompson faces a sex discrimination lawsuit along these grounds, as well as on grounds related to his (alleged) offensive remarks about Jewish and black people.
Martinez allegedly told his female CCO that another female employee should be “hogtied” as well as raped into submission. When the CCO objected to such comments, Martinez, raised in Spain, allegedly said that American women were too sensitive.
That’s right, folks. American women cannot take a joke and are clearly too sensitive to work in a global corporation. Check out the complaint here.
Now, I jest, but this lawsuit alleging sex discrimination and sexual harassment, among other perfidies like complaining about where he’s living because there are “too many Jews,” is just the type of juicy case bloggers love. Why? Because I think the company is going to be in trouble here and/or pay out a tidy sum to settle this matter before a jury can get a hold of it.
An employer is liable for unlawful harassment in violation of the Title VII of the Civil Rights Act of 1964 when the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated as the organization’s proxy.” Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284 (1998).
According to the EEOC, in such circumstances the official’s or harasser’s unlawful harassment imputes automatically to the employer, thereby effectively taking away an employer’s affirmative defenses concerning liability and damages. Such is the case whether or not the sexual harassment resulted in a tangible employment action.
The lesson for employers here?
That’s a tough one when the offender is the CEO of a large corporation, but there’s really no difference:
- Implement a solid anti-harassment policy and complaint procedure and ensure that it’s widely disseminated and understood.
- Engage in some serious training not just for your supervisors or managers but up to the executive level.