So, someone who posed as a nude lumberjack for Playgirl is now upset about the (foreseeable!) consequences of his decision – teasing by his coworkers. And a federal court judge has found that the employee’s sexual harassment claim against his employer, based on his coworkers’ teasing, may have merit. To me, this case, Sawka v. ADP, Inc., is crazy on several levels!
Let’s start with the employee. I find the lack of personal accountability in our society to be appalling. Many people are unwilling to take responsibility for their choices and actions – and, in my opinion, this employee falls into this group. It seems to me that if you choose to put it ALL out there in a sexually-focused publication that is intended for widespread public distribution, you should realize that people (including those you know!) will look at the pictures, comment on them, and, yes, tease you about them. Really, isn’t the whole point of posing for a magazine like Playgirl to invite such attention? Now, I understand that the pictures date from 1991, and perhaps the employee regrets having posed for them at this point in his life. But the passage of time does not and should not absolve him of his responsibility for his (in retrospect) possibly ill-considered decision.
Moreover, his expectations of what his employer should have done were, again in my opinion, unrealistic. The employee initially failed to complain because, in part, he found it “embarrassing.” (Really?) When he finally complained about his coworkers, the employer conducted an investigation, which included interviewing the list of witnesses he provided as well as others. The employee now contends that the employer should have searched the computers of his coworkers to verify that they had looked for his pictures on the Internet. But at the time, I am sure the employer believed it had addressed the issue by speaking with the worst offender about his comments and instructing the Vice President in charge of the office to report any further comments or Internet searches for the employee’s pictures. Given that the employee admittedly did not make any further complaints (although he now alleges that the comments didn’t stop), the employer undoubtedly thought it had resolved the problem.
And now for the judge. Title VII prohibits discrimination “because of … such individual’s [ ] sex.” Courts have found that where conduct – even sexually charged conduct – is not targeted at a specific sex, it doesn’t violate Title VII. In this case, both female and male coworkers teased the employee. This teasing was not because he was male, but because he posed for Playgirl. In the nude. As a lumberjack. The judge, however, went to extraordinary lengths to facilitate a Title VII claim. Rather than assessing the coworkers as a single group, he (oddly) broke it into females and males.
As for the female coworkers, the judge said, “a reasonable juror could conclude that female interest in the photographs existed because of sexual desire and/or his gender.” What?!!! Seriously, the judge is assuming that the female coworkers’ interest is based on sexual desire? ( I can assure you that if one of my colleagues posed for Playgirl or Playboy, I’d be highly entertained by that – without any sexual interest!! Regardless of whether they were male or female!!)
As for the male coworkers, the judge acknowledged that “there is no evidence that those men sexually desired him.” (Well, there is no evidence the women did either!) Nonetheless, the judge found that there could be harassment based on the employee’s male sex because the male coworkers made reference to the employee’s sex appeal and genitals as displayed in the photographs.
In addition, the judge stated that, “a jury could reasonably conclude that the photographs and comments, because they depicted or brought to mind, respectively, nude photographs of a man, were disproportionately offensive and demeaning to men.” But wait! These were not nude pictures of random men. They were pictures of the employee himself! For which he willingly posed! In the nude! As a lumberjack! If anyone demeaned him, it was himself!
Finally, I find it somewhat ironic that, because this case is a matter of public record, it may inspire some to google the employee’s Playgirl pictures. More exposure, not less, for the employee!