DiversityInc - Spring 2012

Sexual Harassment

LEGALUPDATE

University overreacted by firing chin-chucking professor for harassment. A state appeals court ruled that a university did not have the foundation to fire a tenured male professor for sexual harassment. He had approached his department chair in the lounge area, said “Hi, sweetie,” and “chucked” her chin. The department chair filed a sexual-harassment complaint. The professor was fired under the university’s zero-tolerance policy for harassment. He filed state and federal due-process and contract claims. The court found that there appeared to be a rush to judgment and overreaction. There was no prior warning to the professor regarding his behavior being unwelcome or violating the sexual-harassment rules. The department chair claimed that the professor should have known his behavior was unwelcome because of her “stony silence” reaction on a prior chin-chuck incident. The court found this insufficient to give fair warning. The incident itself could hardly be characterized as sexual harassment under any legal definition of that term. Haegert v. U. of Evansville (Ind. Ct. App., 2011).

DIVERSITY CASES

Is Saying ‘Hi, Sweetie’ Sexual Harassment?

Is chin-chucking sexual harassment? Is calling an older worker “old man” and profane names age harassment? Read these cases and more.

Be sure you really hang up before you say what you really think—race and sex comments warrant discharge and union’s refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero-tolerance requirements. The next day, an employee present at the training left a voicemail for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to “entertain” his coworkers by launching into a profane derogatory tirade of the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voicemail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy’s prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011).