Written by attorney Douglas M Larsen

Hostile Work Environment Claims Can Happen To Any Employer -- How To Avoid Them

Perhaps it's karma or even justice. The LA Daily Journal (a legal newspaper) reported on December 20, 2010, that an investigator who worked for a plaintiff's law firm filed a lawsuit alleging a hostile work environment. She claims partners made derogatory comments about women, discussed porn at work, and even took some employees to a strip club after the firm's holiday party. Allegedly, at the strip club, a partner purchased a lap dance for a co-worker about whom the plaintiff had complained. The partner told him to imaging the dancer was the plaintiff. Of course, the law firm's counsel refuses to litigate the case in the media. That's a great sound bite! I'm sure, however, that the case will return to the media's spotlight, absent a settlement with a confidentiality clause. So what is important about this case? A few things. First, I think this case shows that allegations can be made against any employer. No one is immune. Perhaps, in fact, the businesses most likely to be sued are those who think they are above the fray. Second, employers must stop the stray comments from taking place at work. In this case, if the allegations are true, the comments were more than "stray." Hopefully, most businesses don't have employees with such loose lips. However, any comment can get an employer in trouble. Consider the following scenario: A supervisor tells a racy joke. It's not too offensive and no one seems to take offense. Perhaps over time employees are a little glib with one another and occasionally a racy or dirty joke is shared. Again, no one seems bothered or offended by the joke. But then an employee suffers some form of discipline or is otherwise dissatisfied with the job. What happens then? (S)he sues, claiming hostile work environment. As part of the discovery process in litigation, questions will be asked of both sides regarding sexual banter. Typically, employer representatives can't remember specific jokes; although they remember occasional racy jokes. In depositions they say, "Yes, I recall racy jokes in the workplace, but don't have any specific recollection about any of them." In contrast, a plaintiff can remember every joke with great detail. (S)he will claim the jokes are made often and that she was offended. (S)he never complained, however, because (s)he did not want to risk losing her job. Who will the jury believe? The employees who don't have a recollection of the jokes, other than to admit they occurred, or the plaintiff who describes the jokes and other comments in great detail? Third, separate work from personal associations. In this case, the plaintiff alleges law firm members hit the strip joint after the holiday party. If true, can the firm argue the activities at the strip joint were unrelated to work? It will be interesting to see how the facts play out. But it's not smart to mingle work and personal associations if the activities pursued might lead to a claim of harassment or hostile work environment. I know, that kind of stuff doesn't happen at your workplace. Ha! It happens all of the time. I can give you lots of examples of it happening right here in rural, conservative, staid Fresno. Teach your supervisors and management team to separate personal lives, particularly if it includes strip bars, drinking or other questionable activities, from work.

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