• October 16, 2013

creepThere are more guys who give women the creeps than there are women who give guys the creeps.  This should come as no surprise to anyone.  While causes are uncertain, male violence against women is relatively common (some would say epidemic) and the reverse is relatively uncommon (but it may be an under-reported social ill).

Do guys who give women the creeps know they are giving women the creeps?  That question is probably impossible to answer aside from saying, “Probably some do and some don’t…”

When should an employer act on a woman employee’s complaint that a male employee “gives her the creeps”?  What measures should the employer take? Any? Fire the creep?  Create the workplace equivalent of an “OFP,” or “order for protection” (i.e., “You, Creep, shall not walk within 10 feet of Complainant, shall not speak to complainant, shall not whistle to complainant, shall not email, etc., etc.?)?

One thing most of us can agree on:  if an employer receives a complaint from an employee that she feels threatened in any way by a co-worker, the employer must take the complaint very seriously. It must investigate and it must take reasonable steps to help the complainant do her job without fear, undue anxiety, or in an unsafe environment.

J.C. Penney seems to have done that for Loralie Ann Musolf.  Musolf complained about a co-worker who gave her the creeps and who touched her in a familiar way on three occasions (touching her arm, rubbing her back).  J.C. Penney instructed the employee who gave Musolf the creeps that he should stay away from Musolf and, under no circumstances, have any physical contact with her.

Should J.C. Penney have done more?

About eight months later, Musolf was fired and she brought a lawsuit against J.C. Penney, arguing that she was in a “hostile work environment” and that her termination was an instance of retaliation for her complaints about the creep.  J.C. Penney saw things quite differently, of course.

Musolf lost her case on summary judgment on all claims before U.S. District Court Judge Joan N. Ericksen (D. Minn.).

For anyone doing this kind of law, Judge Ericksen’s opinion presents an excellent road-map of the necessary allegations, the defenses, and the various burden-shifting frameworks for these kinds of lawsuits.

 

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