Ohio Employer’s Law blog writes another good post on what to do if the boss is the harasser. See post. Jon Hyman refers to a specific case, EEOC v. Fairbrook Medical Clinic, (4th Cir. 6/18/10), a sex harassment case. In this case, the harasser was accused of several harassing incidents:
- repeatedly showing an x-ray of his penis, calling it "Mr. Happy"
- referring to his wife’s "nice, tight p—-y" during a staff meeting
- telling dirty jokes, including imitations of him kissing a woman’s breast
- frequently talking to staff about oral sex and women’s breasts
- referring to female staff as "slut" and "c—" routinely
- asking a female doctor if he could help her pump milk from her breast, if he could see her breast and could he lick up some spilled milk
This is pretty repulsive stuff. Many courts would consider this to be mere bad manners. But, the 4th Circuit, not an employee friendly court, found this went beyond mere incivility in the workplace. Telling off color jokes is one thing. But, the court found this case involved more than crudities. The business owner targeted the employee with very personal comments designed to humiliate and demean her.
The harasser was the owner of the business. As Ohio Employer’s Law noted, what do you do when the harasser is the business owner? Jon provides some guidelines. The problem for him, an employer’s lawyer, is that employers will be immune from liability if they have a viable procedure in place for victims of harassment to complain. The problem for all small business owners is that this immunity just will not work for them. How can a small business provide a means to submit a complaint about the owner?
Jon suggests the employer provide more than one avenue for the a victim to complain, presumably an office manager or a human resources professional. But, it would be extremely difficult for an employer to establish that an office manager would "buck" the owner in the interests of providing remedies to the victim of harassment. And, the case this immunity stems from provides that this defense (ie, having a viable procedure to make complaints about harassment) is not available when the harassment culminates in an adverse employment action, such as termination. Ellerth v. City of Boca Raton, 524 U.S. 775 (2998). So, even if there is a way to provide an avenue for complaints, the process means nothing if the aggrieved employee is fired or demoted.
The other lesson to learn from Fairbrook Medical Clinic is that harassment must be pretty bad to constitute "actionable" harassment. One or two off-color jokes is not enough. Constant discussions about sex comes closer to actionable harassment. As this case shows, it is important that the harassment be directed toward one person in particular.