Imprudent Prude, or Incompetent Employee?

I'm back, after 3 weeks that have included an unusually heavy workload, religious holidays, and personal/household concerns.

This posting will comment on some ongoing litigation to which I have no direct personal or professional connection. Susan Seybert, whose employment was terminated by The International Group, Inc., has filed suit against her erstwhile employer for sexual harassment.

Let me state, out front, that sexual harassment in the workplace should not be tolerated. When I held a supervisory position in that great U.S. Government bureaucracy, I was personally compelled on a number of occasions to deal with the issue. I had to deal with one of my subordinates being stalked by some nutjob who worked upstairs. And, in the absence of both a co-equal supervisor of mine and our mutual Division Chief, it fell into my hands to most strongly admonish on of my co-equal's guys who persisted in making unwanted comments of a sexual nature to one of his co-workers (who later, by way of advancement in grade, transferred over to report to me). My personal experience confirms that sexual harassment in the workplace is deleterious to morale and productivity, and therefore avails no advantage to America's economy.

But in our litigious society, unhappy former employees (and their attorneys) are quick and loud with their cries of discrimination and sexual harassment in the lawsuits that seem to inevitably follow an employee's involuntary separation. And no one group has any monopoly on such litigation tactics. It thus falls upon the judicial system to sort out the meritorious claims of discrimination and sexual harassment from those that are baseless, frivolous and/or irrelevant, but asserted in attempted retaliation.

A sexual harassment claimant must prove in court that he or she (yes, men can be and have been sexually harassed) (A) was actually offended by the alleged conduct; and (B) a reasonable person in a similar situation would be offended by such conduct.

While Ms. Seybert was employed by The International Group, she used her company computer, on company time, to exchange with company employees some e-mails containing humorous prose and illustrations of a sexual nature. And so, over the objections of Ms. Seybert's attorney, Judge Pratter of the Eastern District of Pennsylvania has ruled that those e-mails may be presented as evidence at trial because they would be relevant to determining both the subjective and the objective standards of just how offended Ms. Seybert was and/or should have been offended by the conduct of which she now complains.

I know nothing about the case other than what I read in Judge Pratter's opinion. But, having litigated discrimination cases, I am calling it as follows:

Firstly, there is the distinct possibility that the parties will reach a settlement before the actual trial (or, if trial begins, before the jury returns a verdict). Most employment discrimination cases do settle (and sexual harassment is a species of employment discrimination).

Secondly, if the ex-employer does not have totally clean hands, and Ms. Seybert has evidence of this, then this might induce the ex-employer to settle. See "Firstly" above. If Ms. Seybert was wise, she kept documentary evidence of her ex-employer's foibles, and she began to keep such documentary evidence back when the employer-employee relationship was a positive one. The first day on the job is not too early to start keeping such evidence. In an employment discrimination case I handled, my client's discrimination claims were not all that clear cut, but the ex-employer moved over to settlement mode when its attorneys became aware of the documents my client had kept over the years. Though not direct evidence of my client's claims, they could have been worked into the evidence, and they would have been quite embarrassing to show to a judge or to a jury. Had my client not inserted certain dubious statements on his resume, the settlement amount likely would have been significantly higher.

[Packrat that I am, I still have, after 30 years, some documents that a former employer of mine would not want to see on the front page of any newspaper. I could probably shitcan them by now, but they contain evidence that is germane to my ex-supervisor's tendencies towards veracity (or, rather, the lack thereof). After 30 years, my ex-employer has been acquired by a Fortune 500 company and my ex-supervisor is out of there more than 20 years. But I, along with so many of his ex-subordinates from his various workplaces, while too involved with our own lives to waste our breaths even to tell the man to go to hell, would not want to be caught shorthanded in the unlikely event that the opportunity for revenge would ever arise.].

Thirdly, given the facts of the case, particularly the evidence Ms. Seybert allowed to accumulate on the hard disk of the company computer she was using, I am not too sure that Ms. Seybert was all that wise.

Ms. Seybert would have the courts and the world believe that she is a prude. Genuine prudes can be tolerable, and can even be pleasant company (my wife's sister and brother-in-law come immediately to mind in the latter regard). What I and so many other people absolutely detest is prudishness of convenience. And Ms. Seybert's trafficking of off-color humored e-mails suggest that she is a prude when it is convenient for her to be a prude, and goes along with humor of a sexual nature when that is convenient. The way I call it, she was probably fired for job competence reasons.