‘That’s too funny’: A Defense to Claims of Sexual Harassment In the Workplace

Contributed by Beverly Alfon

Last month, an Illinois federal court entered summary judgment against an employee who complained of sexual harassment in her workplace by her supervisor.  How did the employer defeat it?  The answer is in the e-mails.

In Jacober v. U.S. Department of Agriculture, et al., Case No. 3:10-cv-0422 (S.D. Ill. Sept. 17, 2012), a loan specialist filed suit alleging, among other things, that her supervisor sexually harassed her in the workplace by publishing inappropriate photographs of himself and a young female intern.  The court rejected Jacober’s claims on the fact that Jacober did not allege conduct that was both objectively and subjectively offensive to support a claim of sexual harassment. In examining the totality of circumstances, the court found that:  

(1) The pictures were not of a sexual nature even though the supervisor’s arms and a small portion of his torso were visible;

(2) Jacober was not present when the photographs were taken;

(3) Jacober did not assist with the creation of the PowerPoint presentation that contained the photographs;

(4) The supervisor never showed the pictures to Jacober or discussed them with her; and,

(5) Jacober was not subjected to the pictures, but rather voluntarily chose to view them after she heard about them.

The most significant factor for the court, however, was the employer’s evidence demonstrating that Jacober received and generated photographs from her e-mail that were more revealing and potentially offensive than those at issue in the lawsuit.  For example, one of the emails that she received was of man from the rearview with his backside completely revealed.  Jacober responded to the sender “That’s too funny” – clearly finding it humorous enough to forward to her daughter.  Accordingly, the court found, “Plaintiff’s own actions therefore, make it unbelievable to this court that she could find the photographs to be unwelcome sexual conduct that made her work environment intolerable.  She tolerated, and in fact, generated further distribution of images that were more revealing…much more sexual in nature than the one of [her supervisor].”

Bottom line:  Evidence of the complaining employee’s tolerance of similar conduct at the workplace can help an employer to defeat claims of harassment and discrimination.  Make sure that your company’s electronic communication and social media policies are in place and up to date. Monitoring and maintaining data on employee use of e-mail and social media at work is not easy or inexpensive, but it could hold the key to your company’s defense to claims of harassment and discrimination.