In order for a plaintiff in a sex harassment case to prevail on a claim of hostile work environment sex harassment, the employee must show that the offensive behavior was unwelcome. On September 17, 2012, a federal court in Illinois relied upon this principle of law to reject a harassment claim brought by a U.S. Department of Agriculture employee. Jacober v. Dept. of Agriculture, No. 3:10-cv-00422 (S.D. Ill. 2012).
In Jacober, an employee alleged that she was subjected to a hostile work environment when she viewed a PowerPoint presentation that included a picture of her supervisor posing shirtless under a pair of bib overalls. The Court found that even if she did not like the picture, she could not establish that it was subjectively sexually offensive because her own work email contained pictures of males wearing even less clothing. One such email displayed a picture of a man with his buttocks showing, wearing only boots, wings, and a halo (hmm…). As a result, the Court ruled that it was “unbelievable …. that she could find the photographs [of her supervisor] to be unwelcome conduct that made her work environment intolerable.”
Lessons learned: (1) employers, be sure to search the email accounts of plaintiffs in harassment cases, as you may find treasure troves of information that will undercut claims of a hostile work environment, and (2) employees who live in glass houses should not throw stones!
By Eric Paltell