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The Invisible Burden - Mere Presence of Pornography Enough To Warrant Harassment Claim...

As a HR Pro, you probably get queasy even seeing the annual SI Swimsuit Issue in the workplace.  Good instincts.  The Supreme Court definition of pornography is "I know it when I see it", and a recent court decision indicates the threshold may even be lower - as in an employee may not even have to see it to be harassed.

Confused?  Daniel Schwartz of the CT Employment Law Blog breaks it down for you:

"This time, in Patane v. Clark, released today, the Second Circuit reversed a decision granting a motion to dismiss a claim of sexual harassment claim.  The takeaway from the case today is that the mere presence of pornography in the workplace -- even if never viewed directly by the plaintiff-employee -- may be sufficient to state a claim of sexual harassment.

...This Court has specifically recognized that the mere presence of pornography in a workplace can alter the “status” of women therein and is relevant to assessing the objective hostility of the environment...."

If that's not a call to remove all questionable materials from the workplace, I don't know what is.  I took a spin through the lobby and removed a newspaper and a Chadwick's catalog, just to be safe.  You should do the same... You think I'm kidding, but I'm not.  It's lock-down mode from here on out...

May the Schwartz be with you....


Dan Schwartz

Thanks for picking up on this Kris. I do think this case should send alarm bells to HR. Everyone should ask -- are we doing enough? What about the pinup calendar in an employee's toolbox that supposedly only he can see (but that everyone knows about)?

Consider too the ever present e-mail spam referring to growth of various body parts. If an employer allows this to continue, could that be enough as well?

Michelle Friedberg

Just read your Workforce article regarding the value of being certified and that you just finished teaching the Labor Relations portion of the body of knowledge.
I just completed a 10 week prep course at Pace University in White Plains - NY and I'm taking the PHR exam on Jan 5th. I was wondering if you'd be willing to share your Labor Relations list of term that you provided to your class?

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