Rich Meneghello, The Daily Record Newswire
I see it all the time — an employee feels like he or she is being picked on in the office and complains to a supervisor: “I’m the victim of harassment!” Or the disgruntled worker might take it one step further — “That guy is creating a hostile work environment!” These words conjure up fear in the mind of any human resources professional because of the possibility of an ensuing lawsuit.
But how worried should employers be when these words are thrown around? And how bad does it have to be in order to be truly considered “harassment?” A recent case provides some guidance.
Jennifer Westendorf was hired by West Coast Contractors in February 2008 as a project manager assistant, providing support to several supervisors at the office and occasionally at a trailer on a construction site. She worked there for only five months, because her employment came to an abrupt end in July 2008.
During almost the entire time she worked at the company, she claims she was subjected to sexually charged and other offensive comments from her male supervisors. Within a few weeks of her start date, she alleges her supervisor degraded her job by calling it “girly work.”
Another supervisor allegedly barraged her with sexual comments about another woman’s body and made comparisons about the shape of that woman’s body with Westendorf’s. He also made several disgusting comments about topics best left for the fraternity house and not the workplace, according to Westendorf.
Several supervisors used the “F” word to criticize Westendorf or her work and generally made her feel uncomfortable, she said. The capper was when her supervisor allegedly told her, on several occasions, that she should put on a French maid’s outfit to clean the company trailer.
Westendorf asked the supervisors to knock it off, and when they didn’t stop, she complained to the company owner. The comments continued unabated, and after a workplace dispute she left her job. She sued the company for sexual harassment, claiming that she was subjected to a hostile work environment.
The Ninth Circuit Court of Appeals — the federal appeals court that hears cases from Oregon, Washington, California and other West states — rejected her claim and ruled that she was not the victim of sexual harassment. The court ruled that the conduct was offensive and it in no way condoned the actions of the supervisors, but it simply didn’t rise to the level of actionable harassment under the law.
That’s because in order to maintain a claim of harassment, it’s not enough to prove that someone did something mean or rude or distasteful to you. Instead, the courts will look at the frequency of the conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the worker’s ability to do the job. And in Westendorf’s case, while no one would want their wife, mother, daughter or sister to be subjected to that misconduct, none of it violated sex harassment laws or caused a “hostile work environment” as the courts define it.
So, the employee who thinks that supervisor is glaring at her in a mean way is not the victim of “harassment,” and the manager who is forcing her workers to work overtime this week is not creating a “hostile work environment.” It takes a whole lot more than that to constitute illegal behavior.
But does that mean employers should now ignore all complaints unless they are repeated and horrific, involving allegations of physical assault or requests for sexual favors, and lead to mass resignations? Of course not. The point is that a business owner shouldn’t necessarily fear a million-dollar judgment simply because an employee cries “harassment!” But the owner can – and should – act to address misconduct even if it doesn’t rise to that level.
That leads to the second point: What if an enterprising employee (who also happens to read this column) tries to escape discipline for misconduct by saying, “Wait a second.
Meneghello says that what I did isn’t harassment, so you can’t suspend me for that!” Rest assured that managers can still discipline employees who violate company standards of professionalism and conduct, even if the behavior is relatively mild by a court’s standard.
If an employee were to sue an employer just because a co-worker told her a dirty joke, the courts would toss her harassment lawsuit pretty quickly. But just because the conduct wouldn’t cause liability doesn’t mean an employer wouldn’t be able to act on it. In fact, I would recommend disciplining that joking co-worker immediately and warning him that future misconduct will lead to termination. If he were to tell a second dirty joke, I still don’t believe the unwitting listener has an actionable hostile work environment claim against the company, but you better believe I’d recommend terminating the co-worker for violating company policies.
Handling complaints like this in a consistent manner will prevent the misconduct from ever developing to the point where someone could have a real claim of harassment against a company.
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Rich Meneghello is the managing partner of the Portland office of Fisher & Phillips LLP, one of the oldest and largest employment law firms in the country dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.
