News Flash—Simulating Sex Acts In The Workplace May Lead To Liability
I’ve been grappling recently with various scenarios I consider to be “grey areas” as to the presence of a hostile work environment. A somewhat creepy message. Asking out an intern alone. Showing vacation photos while on the beach without a shirt.
Taken together, the conduct might rise to the level of “pervasive,” but maybe not.
Objectively, the conduct might be considered sexual harassment. But maybe not.
This post is not in a grey area. And a jury agreed.
What Happened?!?
During this last year, billionaire Alki David, founder of the production company, FilmOn, has been on trial multiple times for sexual harassment and sexual battery. This latest case piqued my interest because (a) it’s about sexual harassment, and y’all know that’s my thing; and (b) David’s behavior in court has been….unusual.
In each of the trials—and there have been four—David has acted erratically.
Erratic like…cuckoo for cocoa puffs as well as downright unruly and disruptive. Our friends at Law360 have written about David’s courtroom antics frequently—yelling at the judge, storming out of the courtroom, and other inappropriate behavior, which you can read about here.
In This Recent Case, We Have Ourselves Some Undeniable Sexual Harassment
The jury sure thought so, anyway.
The plaintiff, who worked for David in 2014 and 2015, testified before the jury that:
David would repeatedly sexually harass her while also subjecting her to frequent unwanted touching;
David would grope her vagina, her breasts, and buttocks;
David would frequently sneak up behind her, grab her head, and shove it into his crotch as part of a crude practical joke;
David gave her a lap dance on one occasion, and, on another, walked into a conference room one day where the plaintiff was meeting with clients and made them all watch porn.
(I’ll spare you the details on this last one and a few (naked) others, described here.)
This, Friends, Is Some Pretty Classic Sexual Harassment.
Yeah, it’s got it all. Remember what sexual harassment IS.
Title VII of the Civil Rights Act of 1964 (Title VII) proscribes harassment of an employee (or job applicant) because of or on the basis of sex. Harassment can include “sexual harassment” i.e., unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The harassment crosses over into illegal territory when it is so frequent, i.e., “pervasive,” or severe that it creates a hostile or offensive work environment or results in an adverse employment decision.
Let’s break this down.
First, sexually charged comments, sex-based jokes, sexual innuendo, slurs, physical touching, certainly groping, and (so many) other forms of unwelcome, unwanted conduct by an owner, employee, or third party may subject an employer to liability under Title VII if the comments or conduct is because of the victim’s sex.
Second, and as we discussed in “Sexual Harassment Prevention 101,” the comments or conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive.
Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.
So, you see, a plaintiff must meet an objective as well as subjective standard.
Objectively, it seems that the jury sure determined that groping an employee’s genitals, shoving her head into his crotch, and subjecting her to porn at work resulted in a hostile work environment indeed.
The Jury Verdict
Last week, the jury found that David committed both battery and sexual battery against the plaintiff, and that David and his defendant media companies FilmOn and Alki David Productions created a hostile work environment by subjecting her to sexual harassment.
Compensatory damages totaled $8.25 million.
Then, yesterday, a California jury took less than one hour to determine that David should also pay $50 million in punitive damages
$50 MIL!
This is on top of the $8.25M and brings the total David owes in all of the cases decided against him to more than $74 million dollars.
Lordy, Ms. Scarlet, that is a lot of money. It’s clear that the jury intended to send a message, which brings me to my final point.
“How Could He Get Away With This?” You May Ask. This is Extreme Behavior.
Yes, indeed. My partner Rich Cohen has been blogging recently about sexual harassment against “vulnerable” workers.
Ask yourself: is a person vulnerable when that person is an assistant to a billionaire who has the power to make or break a person’s career? Yes! Like that. That’s vulnerable.
“Vulnerable workers” are more likely to suffer sexual assault and harassment.
Why? Well, power is one reason.
As I wrote back in April here, culling from one of Rich’s posts, sexual harassment is, of course, like sexual assault, in that it has little to do with sex and all to do with power differential and misogyny.
This “power differential” is important, as we see here, as we saw in the suit against The Palm, and which we saw with Harvey Weinstein.
Low-wage workers often have more to lose, which increases their vulnerability to sexual harassment.
David did it because he could, and now, a jury has hit him hard in his wallet—because it could.
Employer Takeaways
To prevent such behavior and liability:
Have a clear sexual harassment policy in your employee handbook. Be specific about misconduct, and give examples. Don’t assume people just “get it.” You want to actually write and say “no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, or questions about your coworkers’ sex lives. In other words, give your employees some context;
Disseminate the unlawful harassment policy to every single employee throughout your company, and ensure your employees understand it;
Provide a written procedure for reporting and investigating claims of unlawful harassment and follow your procedures, documenting the process along the way. Have clear standards for what merits what kind of discipline;
Check your organizational culture. Culture is key! The organizational culture or climate must not tolerate harassment. A climate that does not tolerate offensive behavior can inhibit harassment even by those with a propensity toward such conduct. That’s tough when the harasser is the owner or founder, but that’s where your Board of Directors must act as a balance;
Provide regular, interactive training, including bystander intervention training, tailored to your workplace;
Encourage reporting of any unlawful harassment and do not retaliate; and
Maintain a “top-down” culture prohibiting unlawful harassment to demonstrate commitment. Leaders must believe authentically that harassment is wrong, not want it in the workplace, must articulate these beliefs, and hold this same expectation of others in the workplace.
The jury verdicts against David were swift and unanimous. #MeToo means business.