The EEOC defines sexual harassment as unwelcome advances, requests for sexual favors and other verbal or physical conduct of a sexual nature in the working environment¦ has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.1 In this case it is definitely true that Lewiston was making romantic advances towards Gilbury and that the advances were unwanted. Gilbury made it immediately and abundantly clear that she wanted to keep the relationship on a working and friendship level. Unfortunately Lewiston seemed a little slow to get the message. Whether or not Lewiston made an actual sexual advance is irrelevant.
After the first letter on June 7, 2008 Lewistons intent was clear, he wanted a romantic relationship with Gilbury. Although Lewiston did not make an openly sexual advance, he did, on June 8, 2008, approach Gilbury in the parking lot and proceeded to touch her. As Justice Antonin Scalia said in the case of Oncale v. Sundowner Offshore Services, What matters is the conduct at issue, not the sex of the people involved and the presence or absence of sexual desire, whether heterosexual or homosexual.2
Of course this case determined that sexual harassment wasnt defined by homosexual or heterosexual, but there is an important guideline for all sexual harassment cases. That guideline is that the conduct should be the issue, not necessarily the actual intent. Lewiston may not have intended the pat on Gillburys shoulder to be anything but a friendly gesture, but given the nature of what had transpired previously and that Lewiston was meeting Gilbury in the parking lot, Gilbury was reasonable in being frightened.
However, the events of the discipline and dismissal seem a bit extreme. Up until that point Lewiston had been a senior employee with an excellent work record. The major events that took place happened within four days and ended with Gilbury obtaining an injunction and filing a complaint with the EEOC. Gilbury did not address the situation with her supervisor nor did she give the school management an opportunity to deal with Lewistons actions. Had she given this avenue a chance, Lewiston might have gotten the message and resumed his normal and professional behavior. It would also have given Lewiston a chance to ask to be reassigned to another school if he felt he could not maintain a level of professionalism. Termination of a long time employee should be a last resort whenever possible.
This case is a perfect example of why a business needs to have a comprehensive sexual harassment policy which includes a formal complaint procedure. Given training in sexual harassment policy and complaint procedures Lewiston would have been more aware of inappropriate behavior and Gilbury would have had a formal channel to go through upon feeling threatened. Had that been the case the end result could have ended more positively for all the parties involved.
1. EEOC Guidelines on Discrimination, Sec. 1605.11(a).
2. Oncale v. Sundowner Offshore Services, Inc. 72 PED 45, 175; WL 88039 (U.S. 1998)