Boss’s Overheard Sex Talk Not Harassment, Court Says (1)

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By Patrick Dorrian

Is sexually suggestive talk among a supervisor and other male workers about some of their female colleagues illegal sexual harassment when it’s overheard by one of the women? Not if it’s a one-time thing and the talk wasn’t especially ugly or directed at the woman who overheard it, a federal judge in Wisconsin ruled.

The March 20 decision by the U.S. District Court for the Western District of Wisconsin adds to the debate about whether and when a lone instance of alleged harassment may be actionable under federal law. The ruling also reaffirms that a single incident of verbal workplace harassment that doesn’t involve a sexual solicitation or actual or threatened violence typically isn’t enough--at least in Wisconsin, Illinois, and Indiana.

The U.S. Court of Appeals for the Seventh Circuit has never held that comments of the type reported by former Dairyland Power Cooperative employee Jacqueline Lee, and the context in which they were made and heard, can amount to unlawful sexual harassment under Title VII of the 1964 Civil Rights Act, Judge William M. Conley said. The Seventh Circuit is the federal appeals court that interprets and sets federal anti-discrimination law for lower federal courts in those three states.

“Whether the bar should be that high to sustain a Title VII claim is to date not open to debate in the Seventh Circuit,” Conley wrote.

Rather, under existing circuit case law, a single incident of sexual harassment is only actionable if it was “extraordinarily severe,” the judge said. Lee’s allegations of what took place while she was at work April 2, 2014, didn’t meet that standard, Conley said.

“The decision does say something about the law not necessarily catching up with the culture,” Lee’s attorney told Bloomberg Law March 21. The media in the #MeToo era is focusing and reporting on single-incident harassment complaints, which can support viable legal claims, Cheryl M. Gill said.

Lee’s lawsuit was based on more than just a lone instance of harassment, and it included having one of the male workers she complained about subsequently be put in charge of monitoring her workplace for harassment, said Gill, who is with Johns, Flaherty & Collins S.C. in La Crosse, Wis.

Dairyland’s counsel didn’t respond March 21 to Bloomberg Law’s request for comment.

Investigation Confirms Misconduct, Draws Apology

Lee says in her January 2017 lawsuit that she overheard her direct supervisor Don Egge, a male co-worker, and two male independent contractors discussing her physical attributes and those of another female Dairyland employee. The discussion focused on her breasts, she says, with the men saying they hoped she would soon be wearing her “spring outfits.”

The men also allegedly compared Lee to another female worker whom they referred to as “here come the jugs,” the court said. They additionally speculated about the sex life of yet another female employee, the court said.

That prompted Lee to leave her Genoa, Wis., office for the day and to call Dairyland’s human resources department when she arrived home. Mary Lund, an HR vice president with the electric power generation and transmission cooperative, met with Lee the next day and again the following day at Lee’s home. Lee was put on paid administrative leave until Lund finished her investigation.

The investigation found that the sexually demeaning talk had in fact occurred, the court said. Egge personally apologized to Lee and assured her it wouldn’t happen again and that Lee wouldn’t face retaliation for complaining. Dairyland twice asked Lee to return to work, but she refused, not trusting Egge’s apology or Dairyland’s promise that further harassment wouldn’t be tolerated. Egge ultimately was suspended for two weeks without pay and ordered to undergo anti-harassment retraining, the court said.

It said Lee’s lawsuit “alludes to” other prior alleged harassment, but that those assertions were too vague to bolster her claim.

Company Also Established Affirmative Defense

Even if the single instance of sexually suggestive talk had risen to the level of severity needed to support a Title VII allegation, dismissal of Lee’s claim still would have been warranted, Conley said.

Dairyland showed it took reasonable measures to prevent the harassment by instituting an anti-harassment policy for its workforce, the court said. It said the employer acted promptly to end the harassment once Lee reported it, by launching an immediate investigation and disciplining Egge.

Lee argued that she should have been transferred to a job where she would no longer report to Egge. But Dairyland had told her it didn’t have any other positions for her at the time and the “attitude” Egge expressed by apologizing made her situation different from cases in which separation is the proper remedial action for an employer to take, the court said.

“However uncomfortable Lee may have been with Egge continuing as her supervisor, she offers no evidence that she had reason to believe Egge was insincere” in his apology, Conley said.

Rhea A. Myers of Wheeler, Van Sickle & Anderson S.C. in Madison, Wis., represented Dairyland Power Cooperative.

The case is Lee v. Dairyland Power Coop., 2018 BL 94016, W.D. Wis., No. 3:17-cv-00050, summary judgment granted 3/20/18.

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