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IN PENNSYLVANIA, OFF-COLOR COMMENTS MAY CREATE MORE LIABILITY THAN A SEXUAL HARASSMENT CLAIM

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Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable. 

In a case of first impression in Pennsylvania, Freeman v. Inter-Media Marketing, Inc. and Qualfon, the Superior Court permitted a claim of negligent supervision to go forward based on a co-worker’s alleged defamatory statements.  To state such a claim, an employee only must allege that the co-worker was on or using company property; the company had the ability to control the co-worker’s conduct; and, the company knew of the necessity and opportunity to exercise control.

This case arose out of comments made in the lunchroom that the complaining employee performed acts of homosexual prostitution in the executive bathroom. These initial comments were repeated by other co-workers on a regular basis.  Management was alleged to have failed to take any action to stop the comments, even though such comments were heard and laughed at by senior management and reported to supervision by the complaining employee.

The Superior Court acknowledged that an employer would not be liable for the initial incident of such conduct stating that “it must be shown that the employer knew or … should have known of the necessity for exercising control of his employees.” In this case, however, it was alleged not only that the statements were made frequently but were reported to, and were neither investigated nor stopped by, the company – thus making them reasonably foreseeable.  Once an employee can establish the employer’s knowledge of the improper actions, it is reasonably foreseeable that the conduct would damage the employee’s reputation, and the employer could be held liable for such damages – here claimed to be $8 million.

In Pennsylvania, shop-talk may not be discriminatory. Words alone, however, maybe expensive.

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