If There is Nudity on TV, Employer Discretion is Advised

An employee had a decidedly chilly response to some nude scenes on the Netflix program showing on the break room TV.  Did she properly channel her anger by alleging a hostile work environment or did she just take it to “ex-streams”?

Stephanie Sims, a bus driver for Metro Transit, walked into the drivers’ lounge where other drivers were watch­ing the Netflix series Luke Cage on the television.  When she noticed nudity on the screen, she demanded that the show be turned off. After a brief disagreement, the show was eventually turned off and Sims left the break room, only to find the show back on when she returned.

Employee Bares Her Feelings

Sims had previously claimed that she twice overheard coworkers having conversations where they used euphemisms for their genitals.  Sims reported both incidents and in each case, a manager instructed the employees making the comments to discontinue such behavior.

Sims complained to several managers about the TV incident, leading them to disconnect and remove the streaming device that provided the access to Netflix on the lounge television. One manager also gave Sims the Metro Transit sexual harassment policy and the union’s telephone num­ber. A different manager spoke to the employee who brought the streaming device to work, and the other em­ployees were reminded about the organization’s respect­ful workplace policies and the prohibition against retaliation.

Sims claimed that a coworker called her at home that night and said the other drivers were angry and planned to con­front her. Nothing actually happened the next day but on the following workday, Sims heard that other employees were angry with her and had threatened her. Sims reported the alleged threats to her supervisor, who responded with suggestions on how she could stay safe.  Sims declined these options and instead submitted a psychologist’s note stating she could not have any contact with other Metro Transit employees.

Sims was placed on administrative leave until she felt safe to return to work. After holding her job open for her for several months awaiting her return, Metro Transit finally terminated Sims, prompting her to sue in federal court for sexual harassment, retaliation, and negligent infliction of emotional distress.  Metro Transit moved for summary judgment (early dismissal).

No Exposure for the Employer

Federal District Judge Paul Magnuson ruled in favor of Metro Transit on all counts and dismissed the case.  On the sexual harassment claim, he concluded that simply seeing a couple of scenes contain­ing nudity and overhearing some unrelated comments just was not enough to constitute severe or pervasive harassment. Moreover, Sims could not demonstrate that Metro Transit failed to take prompt remedial action when she complained, especially since her managers responded to the complaints and immediately undertook effective remedial action.

As for retaliation, Judge Magnuson found that while Sims’ complaints were legally protected, she failed to show that they motivated the decision to terminate her employment. To the contrary, Metro Transit placed her on leave, tried to find ways for her to feel safe enough to re­turn to work, and held her job open for months waiting for her to return. Without a causal connection between the complaints and the termination, the retaliation claim was not viable.

Finally, to recover for negligent infliction of emotional distress, Sims had to prove that she was (1) within a zone of danger of personal physical impact, (2) reasonably feared for her own safety, and (3) suffered se­vere emotional distress with attendant physical man­ifestations. Judge Magnuson ruled, however, that Sims did not establish she was within a zone of danger of physical impact. He also concluded that the threats allegedly made by her coworkers could not be attributed to Metro Transit and that those threats were insufficient to pose any real risk of danger to Sims.

Bottom Line

The first piece of advice is easy – no nudity on the workplace television (or anywhere else on the premises).

In addition, take immediate action to address the behavior. Here, the employer successfully avoided liability and got the case dismissed by making sure the offending action could not recur, giving the com­plaining employee information on how to seek redress, and retraining their coworkers on their respectful workplace policies and their prohibition against retaliation.

Some employers might have been tempted to just tell the employees not to let this happen again and leave it at that. Metro Transit did the right thing by taking the complaint seriously and addressing it properly. That was a prime example of how to respond effectively to a sexual harassment complaint.