Seventh Circuit Finds Sexual Comments Are “Inappropriate” But Not “Harassment”

May 12, 2005

Rhonda Moser sued her employer for sexual harassment. In her claim, she alleged a male co-worker “harassed” her, and she cited several specific examples of his behavior. Specifically, she alleged that her co-worker:

talked “down to her;”
made reference to her “tits;”
told other male co-workers to “watch out because Ms. Moser likes good-looking men;”
commented on female job applicants’ physical appearance;
used profanity in the office; and
spoke about his penis size.

The District Court granted the employer’s motion to dismiss, and Ms. Moser appealed. In its review of the case the Seventh Circuit Court of Appeals observed, “[e]ven assuming that Ms. Moser perceived her work environment as hostile or abusive due to [her co-worker’s] behavior … a reasonable person likely would not have found the [employer’s] work environment to be hostile within the meaning of Title VII.” The court agreed that the behavior was “inappropriate” and that it could have made a “reasonable employee uncomfortable.” However, the court found, in this case, “the handful” of sexually related comments “simply does not rise to the level of harassment our court has held actionable.” Accordingly, the court affirmed the lower court’s ruling, and dismissed the case. Moser v. Indiana Dept. of Corrections, No. 04-1130 (7th Cir. May 5, 2005)
What do you (Wisconsin employers) need to know?
Keep in mind that this case analyzes sexual harassment under federal law, not Wisconsin state law. The federal Equal Opportunity Commission defines sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when 1) submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, 2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.” 29 CFR 1604.11.
Unlike the federal definition of sexual harassment, Wisconsin state law includes within its definition the “repeated making of unsolicited gestures or comments of a sexual nature” Wis. Stats. 111.32 (13). Had this case been decided by a Wisconsin state court or agency, the outcome may have been different.
That being said, this case reminds us that there is a difference between “inappropriate behavior” and “illegal harassment.” Therefore, your “anti-harassment policies” should specifically prohibit “unprofessional or disrespectful behavior, even if not illegal.” In addition, management should be cautioned against classifying employee conduct as “harassment.” Obviously, if an employee has acted inappropriately towards a co-worker, he or she should be disciplined in accordance with company policy or the collective bargaining agreement. However, terms such as “inappropriate behavior” or “conduct in violation of company policy” should be used in place of “harassment” when drafting employee written warnings. Legal counsel can be very helpful in drafting both anti-harassment policies and disciplinary memoranda so as to limit the chance such documents can come back to haunt you at a later time. Harassment can subject an employer to liability, while “inappropriate behavior” may not. Whether or not one of your employees “harassed” a co-worker is for a court, not your company, to decide.
If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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