SW Legal studies in Business

Dirty Talk Does Not Constitute Same-Sex Harassment
Description Appeals court held that a male employee who sued Wal-Mart for sexual harassment because of his supervisor's vulgar talk did not demonstrate that the talk was directed at him or was based on gender. The talk did not rise to the level of sexual harassment that created a hostile work environment.
Topic Employment Discrimination
Key Words Sexual Harassment; Same-Sex Harassment
C A S E   S U M M A R Y
Facts Lack sued his former employer, Wal-Mart, and supervisor, Bragg, for sexual harassment. He contended that Bragg made "inappropriate and demeaning statements ... of a sexual nature" and told vulgar jokes in front of Lack and others. When Lack complained, he suffered retaliation as Bragg made "his work schedule more burdensome and inconvenient." Wal-Mart ignored the problem. Other employees testified as to Bragg's behavior. The jury found for Lack and awarded him $80,000 in damages. Wal-Mart appealed.
Decision Reversed. To sustain a sexual harassment claim based on a hostile work environment, the plaintiff must prove 1) unwelcome conduct, 2) conduct based on the sex of the plaintiff, 3) conduct sufficiently severe and pervasive to alter the plaintiff's working conditions to become abusive, and 4) the conduct must be imputed to the employer. Bragg's comments were vulgar, but the evidence is that they were not based upon Lack's gender. Lack was not treated differently or with greater hostility because he was a man. Other employees of both gender did not like Brag's behavior. However vulgar the remarks may have been, they must be evaluated according to their common usage. They did not rise to the level of sexual harassment that created a hostile work environment.
Citation Lack v. Wal-Mart Stores, Inc., 240 F.3d 255 (4th Cir., 2001)

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