Early in my legal career (circa 1986), a female summer associate responding to my inquiry about why she wanted to be a labor and employment lawyer shrugged her shoulders and said: “it’s about the only area of law where you can use the term ‘blow job’ in conversation and it’s not inappropriate.” That memory came back to me a couple of weeks ago when I read of the court’s decision in Garner v. Clearstaff, Inc., 2015 U.S. Dist. LEXIS 160487 (N.D. Ill. Dec. 1, 2015).
Prefatory note: Use of language that is sexually explicit is just about always going to be inappropriate in the workplace. The court’s decision in Garner should in no way suggest otherwise. Just because it’s not illegal doesn’t mean it should be permitted or tolerated.
In Garner, a sales female representative complained that a female colleague’s use of sexually explicit terms, particularly referencing oral sex, created a sexually harassing hostile work environment. Apparently, Ms. Garner’s co-worker Jennifer Kelly explained in sales meetings that she had the way to improve sales. It’s unclear from the decision whether Kelly was being serious or not, but Garner alleged that she told a group of co-workers at a sales meeting they should “get some chapstick” so “when we give our blow jobs our lips won’t get dry.” Kelly also “dusted off her knees” and said “I took one for the team with that one” and made gestures such as “giving a blow job.”
The comments were not directed at Garner specifically, but to the group of sales representatives. Garner claimed that there were about six inappropriate workplace comments made by Kelly over a two year period. On one occasion she complained to company president Richard Seeman about it. At some point thereafter, Kelly’s comments ceased.
In deposition, Garner testified that she did not believe she was treated differently because of her sex, since most of the comments were made in front of male and female employees.
The court granted Clearstaff’s motion for summary judgment, finding that six inappropriate comments over a two year period did not create a severe or pervasive sexually hostile work environment. The judge also dismissed Garner’s retaliation claim since her underlying Title VII claim was not protected by the statute. This case is reminiscent of Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (U.S. 2001) (per curium), where the Supreme Court held that not everything that happens to be inappropriate violates the law. In other words, don’t make a federal case out of it.