Firing of woman for sexual harassment of men not race discrimination

You never know what combination of discrimination allegations you’ll run across next.

Here, in Wheeler v. Aventis Pharmaceuticals, No. 03-1812 (8th Cir. 3/15/04), there was a peculiar mix of reverse sexual harassment (woman-on-man) and alleged race discrimination. The plaintiff was a black female fired for violation of the company policy against horseplay and sexual harassment, based on evidence of “inappropriately touching male employees’ sex organs.” She claimed the termination was a pretext for race discrimination, but the Eighth Circuit would have none of that, affirming summary judgment for the employer.

[T]he plaintiff admitted that she and her co-workers engaged in various types of “horseplay,” which included discussing each others’ sex lives and sex toys . . . ,” placing “kick me” signs on co-workers’ backs, squirting alcohol or other liquids at each other, and placing rubber snakes or spiders on the assembly line. . . . Apparently, the workers in this department developed a tradition of frequently engaging in puerile and lewd behavior during a certain portion of the work day and coined the curious epithet “dirty hour” to describe the tradition.

The plaintiff acknowledged some touching as alleged, but “contended that the conduct was not unwelcome and should not be classified as anything but ‘horseplay’ or having been done in jest. She argued that other employees often engaged in such ‘horseplay’ at work and received little or no resulting discipline.”

The employer distinguished her situation as specifically involving violations of the sexual harassment policy, not just non-sexual horseplay. The plaintiff attempted to establish racially disparate treatment with evidence that a white female employee was merely reprimanded, not fired, for a similar incident (exposing her breasts). The court found this employee and the plaintiff:

were not similarly situated because their offenses differed substantially. Although they were both involved in sexual “horseplay,” their alleged actions involved differing levels of misconduct towards others. Taking the facts in the light most favorable to [the plaintiff], during their alleged “horseplay” [the other employee] exposed her breasts on request, while [the plaintiff] grabbed male coworkers’ private area in a way that according to the men interviewed was offensive. Sexually-offensive conduct that involves physical contact is not the same as offensive comments, gestures, or lewd displays. [The employer] was not obligated to treat the two behaviors as substantially similar because they involved objectively different conduct. . . . The record reflects that the only other employee accused of touching coworkers’

genitalia received the same discipline as [the plaintiff] — termination.

The court missed a more obvious distinction: that between unwelcome and uninvited sexually-oriented conduct — the crotch-grabbing, and welcome and invited conduct — the breast-flashing in response to requests.

Nonetheless, it might have been a wiser course for the employer to fire the breast-flashing employee. That’s indicative of a pretty out-of-hand workplace environment, whether welcome or not. It certainly could have been the basis of complaints by employees — other than the men who requested it — who found it unwelcome.

Harsher action would have set a better example for the workforce, and taken away this plaintiff’s only arguable basis for a claim, probably saving the employer a trip to the EEOC, district court, and then court of appeals — and untold thousands in attorneys’ fees.