Indecent Proposal In the Workplace

At least once per week, I remind clients that Tennessee is an employment at-will state.  “An employee may be fired for a good reason, a bad reason, or no reason at all,” I remind Mr. or Ms. So and So.  In other words, your employer can terminate you for a really bad, but not unlawful reason.  Similarly, an employee may quit his or her job, without advance notice or explanation.

Recently, a good example of the “employment at-will” principle arose in connection with an employment discrimination case out of Florida.

Michael Richardson worked at Bay District Schools in The Sunshine State for many years under the direct supervision of Jimmy Thompson. Jimmy was, well, a creep. He had a thing for Richardson’s wife and continually tried to solicit sex from her through promises made to her husband.  Among other explicit requests, Jimmy offered money to Richardson if he could convince his wife to have sex with Jimmy.  Supervisor Jimmy also offered Richardson a promotion in exchange for alone time with Richardson’s wife. According to the record, Jimmy even went so far as to call Richardson’s wife and make inappropriate comments to her.  In addition to his inappropriate requests of Richardson, Jimmy was also no novice when it came to using lewd language regarding women in the workplace.  Long story short- Richardson was no Woody Harrelson and Jimmy no Robert Redford. Eventually, Richardson had enough.  He sued Bay District Schools, claiming that he was subject to a hostile work environment based on his gender in violation of Title VII of the Civil Rights Act.0ce4d17117c22c8e69b2350c87535bd7

To prevail on a hostile work environment claim based on sex under Title VII, a plaintiff, like Richardson, “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constitutes discrimination because of sex.” Oncale v. Sundower Offshort Services, 523 U.S. 75, 81 (1998).  After examining Richardson’s claim, the Florida district court granted summary judgment in favor of Bay District, a decision later upheld by the Eleventh Circuit Court of Appeals.  Both courts agreed- while Supervisor Jimmy’s behavior was “highly offensive and inappropriate,” it did not amount to a legally cognizable hostile work environment claim based on sex discrimination.  The Court of Appeals explained that there was no evidence that Jimmy treated men any differently than he treated women in the workplace. Rather, the record indicated that Jimmy directed his conduct toward Richardson solely because he was attracted to Richardson’s wife, not because Richardson was a male.  As an aside, Richardson may not have had a claim of sex discrimination under Title VII, but, as a result of his allegations, Jimmy was arrested and charged with soliciting prostitution based on his advances.

This Florida ruling brings me back to my original point – an employer may act without good reason, or be downright inappropriate, and the actions still may not constitute unlawful behavior.  The employer’s actions must violate a state or federal law to warrant litigation.  If Jimmy had discriminated against Richardson because he was a man, then Richardson’s Title VII action would have moved forward to trial.  Title VII also prohibits discrimination by employers on the basis of race, color, religion, and national origin.  Other federal and state laws protect employees against discrimination related to a disability and for retaliation by an employer for reporting discrimination based on any of the previously mentioned factors.

So, other than clarifying “at-will” employment, what can employers learn from this case?  For employers, regardless of the favorable outcome for Bay District, be reminded that supervisory personnel like Jimmy have no place in your employment.  Under different circumstances or with a different plaintiff, Jimmy’s behavior could have had drastic consequences, in the form of expensive litigation and damages.  You will recall that Jimmy frequently used derogatory language when referring to women. If a female employee felt she was being treated differently based on her sex, this vulgar language would have gone a long way toward supporting her claim.  If your business would benefit from additional training on the prohibitions against discrimination and harassment in the workplace, please contact me. Effective training is essential to minimizing legal vulnerability.

As for employees, if you are employed “at-will” keep in mind that you may leave your employment at any time, for any reason.  In fact, if you face a workplace similar to Mr. Richardson, I highly recommend that you seek alternative, and more positive, employment.  I also recommend that you consult with an attorney to evaluate your options and determine whether you may have been harassed or discriminated against based on a protected class, as is prohibited by federal and/or state law.