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| Bad Girls Can't Complain |
Two recent cases illustrate how employees who participate in sexualized conduct at work might be prevented from later suing for sexual harassment. Depending on the situation, an individual's behavior may preclude a claim that a manager's sexual conduct was sufficient "to alter the conditions of ... employment and create an abusive working environment."
The first case involved Amy Kraus, a temporary worker at Cingular Wireless in Pennsylvania. According to Kraus, she and her manager, Joseph Ruiz, communicated with each other via instant message (IM).
In one IM conversation, Kraus and Ruiz were discussing a sex dream he'd had about her. As the exchange progressed, Kraus wrote, "[the sexual dream] was totally flattering, and um, I dunno, kinda hot and surprising all at the same time." Kraus later also admitted via IM that the idea of having an affair with her boss "might have crossed my mind."
In the following weeks, Ruiz made further sexual advances. Kraus, however, no longer welcomed Ruiz's attention, and soon quit. Kraus then sued for sexual harassment under Title VII.
The Court dismissed Kraus's lawsuit. Rather than a hostile work environment, the Court called the IM conversation an instance of "intersexual flirtation." As the Court warned, "juries must ensure that they do not mistake ordinary socializing in the workplace – such as ... intersexual flirtation – for discriminatory conditions of employment." [Kraus v. Cingular (PA 2008) no. 06-975]
Likewise, when Mississippi bartender Debra Brockington sued the Gold Strike Casino for harassment, claiming her female supervisor "grabbed my butt [and] touched my breast," the Court refused to find a hostile work environment. Instead, the Court found the casino bar was a workplace where sex-based conduct was the norm, and that Brockington was an active participant rather than a victim.
The Court pointed out Brockington herself "made 'off-color' remarks, repeatedly grabbed the rear end of a female co-worker, gave sexually suggestive gifts to a co-worker, and ... made sexually suggestive gestures in order to entertain customers. [Thus, she] can not validly contend that similar actions by a supervisor were either 'physically threatening or humiliating' nor that such conduct 'unreasonably interfered' with her work performance."
"Indeed, the evidence suggests that [Brockington] herself initiated such conduct," the Court observed. Accordingly, "she may not establish liability upon the mere fact that a co-worker who engaged in similar conduct with her happened to be a supervisor." [Brockington v. Circus Circus (MS 2008) no. 2:07cv1]
For information on this topic tailored to your company profile, request Memos and Policy: |
5900 Overview of Sexual Harassment
5905 Sexual Harassment Based on Hostile Environment
9515 Anti-Harassment Policy
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