Defining the Line Between Lawful (but Awful) Bullying and Unlawful Harassment

Consider the following allegations of sexual harassment levied by Pamela Daniels, a secretary in the Pike County (Ohio) Prosecutor’s Office, against her boss, County Prosecutor Charles Robert Junk.

And then let’s answer the age-old question — lawful (but awful) bullying or unlawful harassment?

(1) he permitted male diversion officers (excluding Jason Savage) to work hours other than 8:30 a.m. to 4:30 p.m.;

(2) he did not strictly require male diversion officers (excluding Jason Savage) to punch a time clock;

(3) he accessed female employees’ computers to check on their personal internet search histories and, on one occasion, he accessed and left female employees’ search histories on their computer screens;

(4) he prohibited plaintiff Barron from cashing in her vacation time, but permitted male employees to do so;

(5) he laughed and chatted with male employees, but “smirked” at female employees;

(6) on one occasion, he commented to plaintiff Daniels that she looked like she had lost her best friend;

(7) he loudly popped packing materials in the area where the female employees worked;

(8) he told members of the public on one or two occasions that “these girls have work they need to be doing. I’m just making sure they’re doing what they’re supposed to do.”;

(9) he stated in front of female employees, “Everybody working. Nobody’s whining. That’s the way we like it.”;

(10) he asked, in front of the female employees, whether “everyone” had punched the time clock;

(11) he spoke to others about plaintiffs as if plaintiffs were not present; and

(12) he asked plaintiff Daniels on one occasion why she was wearing jeans and said “if you say so” and stomped off when plaintiff Daniels reminded him that he had given her additional time to comply with the dress code.

Lawful (but awful) bullying, or unlawful sexual harassment?
According to the 6th Circuit, the answer is lawful (but awful) bullying.

There is little doubt that the working relationship between Junk and Daniels deteriorated significantly after October 2013. However, the listed instances of alleged harassment, even in the aggregate, would not be considered by a rational person to be sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment. One of the instances of alleged harassment. … Numerous others involved implementation of office policies that reflected the realities of the responsibilities of office personnel. Others were relatively innocent, singular occurrences, comments that were not objectively hostile or abusive, or “mere offensive utterance[s].” … Without question, Junk’s actions in that regard showed both immaturity and bad judgment. The totality of the circumstances, however, do not support the conclusion that the working environment was objectively hostile or abusive.

I could construct a plausible argument that a jury, not a judge, should decide whether Junk sexually harassed Daniels, and a different panel of judges could see this issue differently and side with Daniels.

Do you know, however, the best course of action to remove any uncertainty over the issue of whether boorish office behavior crosses the line from lawful bullying to unlawful harassment?

Don’t employ assholes. Period.

It’s just that simple.
And, lest you worry that Junk and his employer got off scot-free, Daniels prevailed on her retaliation claim, as not only did Junk subject her to this litany of misconduct, but he also fired her after she complained about it.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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