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Friday, February 7, 2020

Court Says Boss Asking Questions About Oral Sex, Other Sexual Comments Not Sexual Harassment, Employee Can Be Fired For Reporting #MeToo

We had a brief respite from ridiculous rulings on sexual harassment during the past several years, but with Trump appointees now constituting 25% of the federal bench it was certain to change. The 11th Circuit had been pretty good on sexual harassment for awhile, but this new case tells me things are changing back to the bad old "four gropes rule" days.

In Allen v. Ambu-Stat, LLC, the 11th Circuit found that the boss/owner doing all of this over the course of 3 months wasn't either severe or pervasive enough to be sexual harassment:

  •  "[A] song came on the radio containing the lyrics “eating booty like groceries.” Santos asked Allen, “[D]oes your boyfriend eat that thang?” Allen replied that her boyfriend did not and did not know how to do so. Santos answered, “I could teach him.”"
  • "Allen recommended chocolate milk to help Santos with muscle soreness. A few hours later, Santos texted Allen that he loved chocolate milk, along with images of “tongue” emojis."
  • "Santos pointed out Allen’s groin area, which was wet with sweat, and commented, “Damn, that thing get wet like that!”"
  • Getting his son to slap her on the buttocks.
  • Multiple comments about her appearance and butt.

The Court said: "Plainly, Santos engaged in unsavory and unpleasant conduct. However, as we have emphasized, this type of boorish behavior, with this kind of frequency, is insufficient to constitute pervasiveness for a sexual harassment action under Title VII."

The wife/co-owner wrote the victim up for an "inappropriate conversation," namely the one about oral sex. When the employee/victim reported the boss/owner's comments, she was fired. The Court says that wasn't illegal retaliation, because what she reported wasn't sexual harassment, and she couldn't have had a good faith belief that it was.

So we're back to the bad old days of allowing employers to fire employees for reporting sexual comments. The Supremes say you have to report sexual harassment if you want to sue over it and give the employer a chance to fix it. But if you report it and you don't have a law degree and get it wrong, and it just isn't rapey enough to be sexual harassment in the Court's mind, then the employer can fire you for reporting it.

The opinion cites some cases that are also very bad for sexual harassment victims, so it's worth reading to see just how bad the law is on sexual harassment and how far we have to go.

And this is easy to fix. Compare this ridiculousness to New York's sexual harassment law. First of all, it applies to all employers, not just those with 15 or more employees. And instead of the "severe or pervasive" standard that has been used to doubly punish victims, as of October 11, 2019, this has been changed so that harassment is unlawful if it anything than "petty slights or trivial inconveniences." And isn't that how it should be?

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.