Friday, February 10, 2017

Boorish Behavior at Work Is Not Always Sexual Harassment

Every employer knows that sexual harassment cannot be tolerated in the workplace. But, fortunately for employers, the courts understand that not every instance of inappropriate behavior is actionable. Take the case of Shirley Moore v. Wal-Mart, decided yesterday by the Northern District of Illinois Court.

In this case, the plaintiff was employed by Wal-Mart as a sales associate to work at a Wal-Mart store in Lansing, Illinois. Her supervisor was Robert Rudd, an assistant manager. Moore alleged that between January 2013 and April 2013, Rudd regularly made statements to Moore, including that her pants fit nicely and if she would look into his eyes she would know how what he meant to say. Moore believed those to be of a sexual nature. Rudd also allegedly touched her on the thigh in an incident where he was counseling and comforting her about her financial problems as she was applying for employee financial assistance from a company program. At that time, the plaintiff said that he also told her that the right encouragement [from her] might help him write a stronger letter in support of her request for assistance.  Wal-Mart terminated Moore's employment due to excessive absenteeism in April 2013. Only after her termination did Moore complain about the alleged harassment by Rudd.  Wal-Mart conducted an investigation and concluded that although it failed to discover evidence to support Moore's claims, it would reinstate her employment. Rudd is no longer employed at Wal-Mart. Moore filed a hostile work environment claim brought under the Illinois Human Rights Act.

In finding that the case should not proceed to trial, the court found that, contrary to Wal-Mart’s assertions, the statements made by Rudd to Moore could be taken as remarks of a sexual nature and that him touching her thigh could also be construed in the same way.  The court found, though, that even if Rudd’s behavior was of a sexual nature, it was not so pervasive or severe as to meet the definition of hostile environment sexual harassment. As the court explained, to determine whether sexual harassment occurred, it makes an assessment that includes the severity of the allegedly discriminatory conduct, its frequency, whether it is physically threatening or humiliating or merely offensive, and whether it unreasonably interferes with an employee's work performance.  The court here quoted from another decision that “it is not enough that a supervisor or coworker fails to treat a female employee with sensitivity, tact, and delicacy, uses coarse language, or is a boor…“ such failures are too commonplace in today's America, regardless of the sex of the employee, to be classified as discriminatory.

Despite the court’s recognition of increased boorish behavior in America’s workplaces, what Wal-Mart did right was that they conducted an investigation, even though the complaint was made post termination. Additionally, we can only presume that the company substantiated inappropriate behavior which likely violated their company policy, and took corrective action in both reinstating Moore and presumably separating Rudd (although it possible that he coincidentally resigned around the same time). This was smart for a couple of reasons. First, it is important for employers to investigate complaints of sexual harassment, even if the first complaint is when the employee is on the way out the door. The employer’s obligation to ensure a workplace free of harassment continues. Secondly, it appears that Wal-Mart has a much lower tolerance level for boorish or bad behavior than the courts, and took action based on their policy, if not the law. Employers should always set the bar higher than the law to ensure that they never violate the law. Thankfully, though, the courts understand that employers cannot prevent every instance of inappropriate behavior among its staff.