Is Sexual Harassment Ever Permissible in the Workplace?

Back in the days before the term "hostile work environment" had yet been coined, a valid claim of sexual harassment usually required that a supervisor was using his position to seek sexual favors from a subordinate. Then it evolved that the perpetrator did not need to be a supervisor, but sexual harassment could exist when the company failed to protect an employee from improper harassment, even at the hands of peers. And then finally it came to be that the perpetrators did not even need to be employees; even customers or others could create a hostile work environment.

But how do the courts handle it when, from all indications, a hostile work environment is seemingly an inherent part of the job? How would that ever arise, you ask? Well, the most famous case in this regard is Lyle v. Warner Bros. Television Prods. In that case, the plaintiff was a writer’s assistant on the "Friends" television show. She took exception to the sexually charged nature of the writing and production process, which included meetings that were fraught with sexual comments and innuendos, often demeaning to women. She lost her action after the court determined as a matter of law that a show about sex and other adult themes could not be written without reference to and meetings about sex and other adult themes.

PrisonersSome thought Lyle would be the first of many cases to recognize that a hostile work environment is unavoidable in some industries. For example, can a female prison guard claim hostile work environment because the prisoners are always peppering her with sexual comments? Well, funny you should ask because that is the precise situation that arose in Freitag v. Ayers. There, a prison guard at Pelican Bay state prison finally had enough and sued based on a hostile work environment. The prison thought it had an out with the Lyle reasoning, since prisoners will be prisoners and the prison cannot control their behavior. But the court disagreed, and held that even where the harassment is likely to occur, the employer must take reasonable steps to end the harassment. The facts of Lyle were very specific, and if a prison is required to shield female guards from mouthy prisoners, then there will be few circumstances where a hostile work environment will be found to be a necessary evil.

Lesson for all businesses: The duty to protect from a hostile work environment goes far beyond protecting employees from supervisors. Businesses must provide a shield from all people the employee comes in contact with, whether it be other employees, customers or vendors.

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Dale - February 18, 2011 7:01 AM

If I were a prison warden I would think it would be easier to stop hiring women than to ensure that women are shielded from the mouthy prisoners, but I suppose that practice would also land me in hot water?

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