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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....

Comments

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

Kris:
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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