The recent Westendorf v. West Coast decision by the Ninth Federal Circuit Court of Appeals offers yet another example of management’s failure to understand that sexually hostile behavior is not permitted in the workplace. In this case, the boss and coworkers said the plaintiff was doing “girly work,” talked about the large breasts of another woman with her, made tampon jokes, joked about orgasms, and eventually started cursing at her. As mentioned in previous articles, whether she eventually ends up winning or losing isn’t the point. Either way, the employer now finds itself as a named defendant in a nationally publicized lawsuit that will cost it tens, if not hundreds, of thousands of dollars to defend what amounts to stupid and boorish conduct.
In this case, the plaintiff never reported the alleged harassment to a human resources officer. Perhaps if she had an alternative channel of complaint other than through the ranks, she would’ve received appropriate attention. Apparently the boss did admonish a manager and coworkers to quit the harassment, but when they continued it, the plaintiff just couldn’t take it anymore.
The court ruled that although the sexually hostile conduct was not severe or pervasive enough to alter the terms of her employment and support a sexual harassment claim, she might have faced retaliation for bringing the claims in the first place. It’s important to note even though this case was decided on April 1, 2013 dealing with conduct that ended in July 2008, it has yet to go to trial! I can only imagine what it could have, and should have, been settled for soon after filing, rather than slogging through the courts for the past five years. This doesn’t benefit either the plaintiff or the defendant – but it certainly helps fill counsel’s billable hour requirements.