Female Employee Who Participated in Sexual Jokes Failed to Prove Sexual Harassment

Written by Robert G. Brody on August 19, 2011

A federal court recently ruled a female employee who contributed to the sexually charged work environment did not establish that she was so offended by male coworkers’ conduct as to constitute sexual harassment.  While the environment which persisted at this company is by no means a model for all employers to live by, the case shows it is hard for a sexual harasser to claim sexual harassment him/herself.  

Shannon Mandel began working for M&Q Packaging Corp. in 1996.  She claimed that on a daily basis she was called names such as “toots,” “missy,” “woman” and “bitch.”  In addition male coworkers and supervisors made various comments to her such as commenting on her legs when she wore skirts, saying her shoes were “beat me, bite me” shoes, telling her she should use her “assets” to her advantage, and asking her to make them coffee.  She also claimed pay disparities between herself and her male counterparts.  

However, there is one important difference here than in most sexual harassment cases.  Mandel herself regularly participated in sexual jokes.  She often emailed sexually explicit jokes to her coworkers, she called the plant manager “gay” as an ongoing joke with coworkers, and regularly used the “f” word. 

Mandel said she complained once to a manager in 1996 when a male coworker asked her to make him coffee, and complained once to a female coworker about her supervisor’s comments.  Finally, in 2007, Mandel quit, but claims she was constructively discharged because of the hostile work environment which was created by the male employees.  She filed a lawsuit claiming constructive discharge, sex bias in pay and sexual harassment. 

The District Court said there were no facts to show these sexual comments and jokes caused her any distress.  Mandel was not distressed to the point of being unable to perform her job duties, and suffered no psychological harm.  She failed to show the conduct was subjectively offensive.  The sexual jokes were commonplace in the office and the facts showed she had a casual attitude towards the situation.  Mandel never made any formal complaints to M&Q officials besides the one time in 1996, and worked under these conditions for over ten years before quitting. 

The Company was lucky in this case to have avoided liability.  Once harassment claims are made, it is unusual for that allegation to be proven, but the company was exonerated because the conduct was “welcome.”  Needless to say, M&Q should not tolerate such a work environment.  Comments and jokes such as those taking place at M&Q should be immediately reported and the offenders disciplined.  It is also important to remember that sexual harassers are not always male.  Mandel’s sexually explicit emails and name calling could constitute sexual harassment to her coworkers. 

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Discrimination and Harassment, Legal Updates, News, Sex

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More