The Real Boss's "Porn in the USA"

A recent study estimates that a new pornographic video is produced every 39 minutes in the United States. According to a lawsuit filed by a female university secretary, that was about how often her boss watched porn in his office. The secretary alleged that her boss, a professor, spent one to two hours every day viewing hard-core pornography on a television in his office. How did she know? "The flickering from the TV screen was visible through the glass partition of his office," according to the secretary. But that wasn't all she claims she was concerned about with regard to her boss's activities. She also claims that on one occasion she saw pornographic videotapes strewn about the floor of the professor's office and that her boss once used her computer to access Internet pornography. The secretary alleges that her boss also regularly ordered sadistic and masochistic videotapes and had them shipped to his university office so she would have to open and deliver them to him.

The secretary says she reported her boss's porn problem to the Director of Equity and Equal Opportunity, but nothing was done. In fact, she claims that after she reported her boss, she was retaliated against by having virtually all of her work taken away, in hopes that she would quit. Well, not only did she refuse to quit, she sued for, among other things, sexual harassment and retaliation.

The United States Court of Appeals for the Second Circuit reviewed her complaint last week. The court stated that in sexual harassment cases, the court must be careful to review the "totality of the circumstances" and that courts should be cautious not to "set the bar too high" for potential plaintiffs. The university and the professor argued that the secretary did not have a case, because her boss's behavior was not "directed at" her. For example, they argued that she never actually saw the dirty movies the professor was watching. The court disagreed finding that she "observed" her boss, if only vaguely through a glass partition. Moreover, the court said "the mere presence of pornography in a workplace can alter the 'status' of women therein...." The court found that it was significant that the secretary was required to handle the porn videos that were sent in the mail, that on one occasion she found porn sites on her computer, and once saw porn videos on the professor's office floor. Combined with the university's alleged failure to take any action, the court found that a "a jury could well conclude that [she] was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions." The court also found that the secretary did not need to show that "all of the offensive conduct was specifically aimed at her," but only that she suffered a hostile work environment because of her sex. Ultimately, the court allowed her to pursue her sexual harassment and retaliation claims under Title VII of the 1964 Civil Rights Act and New York state and city laws.

The lesson for employers is clear: if there ever was a time when courts viewed "indirect" behavior, however indecent, as simply a "private and personal" matter that could be ignored without consequence, that time is gone. Even when lewd behavior is not directed at a particular person, its "mere presence" in the workplace can lead to liability, if it is not dealt with promptly and effectively.

Paul Sinclair is a partner in the Firm's Labor and Employment Practice Group. In addition to counseling clients on employment problems and disputes, Paul handles all aspects of employment related legal claims (EEOC, state agencies, and lawsuits) on behalf of employers. Paul also negotiates collective bargaining agreements and handles arbitrations on behalf of management.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.