Tuesday, January 29, 2008

Illegal Briefs?

From the incomparable Workplace Prof Blog, we are directed to a story about the CEO of American Apparel, who apparently prefers to go "apparel-less." An employee of his is claiming that the CEO's practice of running meetings nearly nude resulted in a sexually hostile work environment.

In a few weeks when we focus on Title VII and the claim of sexual harassment, we'll discuss the requirement that an alleged victim of harassment must prove that the perpetrator targeted the victim because of the victim's sex. Here the defense is that Mr. Charney, the nearly-naked CEO, didn't target Ms. Nelson, his employee who is complaining of sexual harassment, because of her sex. Rather, he treated everyone -- male and female alike -- to the same uncomfortable experience.

In a pretrial brief the defendants counter that Nelson was not discriminated against based on her sex because everyone at the company was subjected to the same sexually explicit workplace. The answer brief says Charney did not dress as he did in Nelson's presence because she is a woman. Rather, he wore his underwear to meetings for many reasons, including "product development, testing product fit, marketing, promotion, sales and even just humor," according to the brief.
As Workplace Prof Blog suggests, this is the tale of the "equal opportunity harasser."

Another interesting aspect of this type of claim, which we will discuss in a couple of weeks, is whether an employee should expect a certain amount of sexually charged behavior to be directed at her when she takes a job in a company or industry that is known for such.

"American Apparel is a workplace where employees of both genders deal with sexually charged imagery, conduct, speech and photographs as part of their jobs, and such conduct and speech does not constitute sexual harassment," the brief says.
Did Ms. Nelson get only what she should expect?

1 Comments:

Blogger spoehner said...

Although we have not covered sexual harrassment in class yet, I think that Ms. Nelson should have understood the type of culture of the organization. However, I also feel that no employee should have to feel threatened or harrassed; this is tricky because what constitutes harrassment for some isn't always considered harrassment by others. I think that one of the main arguments that a behavior is sexual harrassment if one is intentionally targeting and offending the individual. However, I am aware of cases in which intent is not of importance. The example that I recall is when an employee at a beer company pointed at a sexual term in the dictionary when another employee had inquired about it. To me, that's not sexual harrassment because the other employee had, if you will, instigated the behavior and the individual who pointed to the term did not have the intention of offending the other employee(but I know that my opinion does not count in the court of law - but since I don't what legally constitutes sexual harrassment because we have not yet covered it in class, I'm putting it out there).
I also think this brings up an interesting point: is it sexual harrassment if everyone is treated this way, and when some employees like Ms. Nelson perceive this behavior as sexual harrassment when it's been normalized by the company? I would hate to say that as a result of being normalized by the company that makes it okay (especially when there have been many incidences in which companies normalize unethical and illegal activity in their organizations), but I think that legally (although we have not covered it yet in class) it would be much more difficult to prove in the court of law.

I think this connects somewhat with employment-at-will. In the event that Ms. Nelson does not have a compelling enough case for sexual harrassment since, if I understood correctly, Ms. Nelson is singularly perceiving the CEO's behavior this way, she does have the ability to end her employment with the company if she feels harrassed by the CEO's near nudity.

6:07 PM  

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