YIKES! We all know what can happen when a dispute goes to a jury, but when the jury in this case gave the employee $168 million in damages for the harassment she suffered, it set what many lawyers are calling a record. Because most federal employees have the same right to put their case before a jury like she did, we thought you might want to know what caused the jury to do this. Maybe a member of your local has a similar case.

The employee was a Physician’s Assistant at a Catholic Healthcare West hospital in a work place apparently awash with inappropriate comments and bullying. The employee was able to prove the following behavior by several surgeons: one called her a “stupid chick” while she was on the job in the operating room and followed that up with disparaging remarks about her Armenian heritage—including asking if she was an Al Qaeda supporter; another stabbed her with a needle; a third told her “I’m horny” and slapped her butt; and she was regularly denied meal breaks. When she complained, all Catholic Healthcare west could manage as a defense was to call her not a “team player.” Apparently, hospital administrators thought that staff should tolerate this kind of behavior by surgeons to “stroke the surgeons’ outsized egos.”

There are two kinds of sexual harassment claims.  The claim in this case was a “hostile-environment” claim.  The union can prove this if it can show–

(1) that the harassment was unwelcome;

(2) that the harassment was based on sex;

(3) that the harassing conduct was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment; and

(4) that either the harassment was committed by the employee’s supervisor, OR the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

On the other hand, if an employer conditions employment benefits upon whether or not the employee performs favors that are sexual in nature that is called “quid pro quo” harassment.  The union can prove that if it can show–

(1) the employee is a member of a protected class;

(2) was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;

(3) the harassment complained of was based on sex;

(4) the submission to unwelcome advances was an express or implied condition for receiving job benefits, or your refusal to submit to a supervisor’s sexual demands resulted in tangible job detriment; and

(5) There is some basis for holding the employer liable. 

It is likely that this jury’s decision will be overturned and reduced, but this case is a wonderful example of why managers should work harder to settle disputes.

But don’t think that only women are protected under the sexual harassment laws. In 2010 a federal circuit court held that a man had a claim after receiving notes from a female co-worker telling him she was “turned on” and wanted to “go out” with him. She then sent a sexually suggestive picture of herself and followed-up by asking her friends to let the guy know what she felt. When the guy’s manager told him to consider it a joke and that he should be singing aloud about how sexy he is, the guy complained to other managers.  All that got him were rumors circulating that he was gay.  His work suffered and he was fired. The district court dismissed his discrimination lawsuit saying the behavior was not “severe and pervasive” enough.  And then in a comment worthy of Rush Limbaugh’s loose lips the court stated that “most men in [the guy’s] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory.”

This guy made it plain to everyone he did not because his wife had only recently died and he was a devoted Christian. The appeals court sent the case back for another trial and a potential jury judgment against the employer. That court noted that “it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome.” However, it also said that not all propositions of romance or sex are sexual harassment.

The other thing to know about this kind of cases is that in order to avoid or lessen its liability the courts have encouraged employers to quickly put an end to any improper behavior, including disciplining and firing the offending employees.  So, do not be surprised if the union starts off representing a woman in one of these claims and ends up also representing the offending co-worker from discipline.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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