This company thought it was legal to keep a manager around who harassed men and women equally. One thing they forgot about: State law usurping federal law.
As you might know, if a supervisor is mean and abrasive to both men and women, a company will most likely not be held liable under Title VII for hostile work environment sexual harassment.
But what’s true for federal law isn’t always the case for state law, as this case proves.
Here are the details of the case:
Brian Zapolski served as manager for three female employees at Two Harbors Fish Company in Minnesota.
All three women claimed that Zapolski sexually harassed them, including:
- asking them about their sexual preferences
- telling them about his sexual dreams
- making jokes about the size of his penis
- showing them pictures in Playboy magazine
- giving them pornographic DVDs and asking them to watch them, and
- calling one of them and asking her, “How’s my little horny one?”
The women sued the company, claiming sexual harassment, but a district court ruled in favor of the company.
The lower court acknowledged that the women were “subjected to coarse sexual talk, gestures, and conduct they did not welcome” and “that the majority of the sexual comments [were] based on sex.”
But the court also noted that none of the women were explicitly sexually propositioned and, more importantly, Zapolski’s sexual comments “were widespread throughout the employment setting and not merely directed at females.”
Gender vs. sexual harassment
A court of appeals reversed the decision, and the Minnesota Supreme Court agreed.
Yes, the court said, Zapolski harassed both men and women equally, but there’s a difference between a claim for hostile work environment based on gender compared to hostile work environment based on sex — at least when it comes to state law in Minnesota.
Michael Wilhelm, writing on Minnesota Employer blog, explained the difference:
One claim alleges that an employee suffered harassment because of his or her gender. The other alleges that an employee was subjected to harassment of a sexual nature. While the gender of the victim may be relevant in the context of determining whether someone was treated differently because of his or her gender, the Court held that it is not relevant in determining whether someone was subjected to sexual harassment.
And, as the court said, directing inappropriate, sexual comments at both men and women can, therefore, be actionable sexual harassment.
Barnes & Thornburg attorny Jennifer Cerven had this to say about a case that should serve as a warning for HR pros:
So while the “equal opportunity harasser” defense may remain viable in a Title VII case, it certainly is not the first line of defense and in some instances will not be a defense at all under state law. At the risk of stating the obvious, when faced with an “equal opportunity harasser,” employers are well advised to take prompt and effective action so that the behavior is corrected before it becomes a claim.
The case is Rasmussen, et al. v. Two Harbors Fish Company.