According to the Fourth Circuit in the recent case of Walker v. Mod-U-Kraf Homes, pretty darn often. The Walker court stated “whether harassment was sufficiently severe or pervasive is quintessentially a question of fact.” In other words, if it’s at all a close call, as it often is, a court should let a jury decide as opposed to simply dismissing the case. As you know, once a case gets before a jury, the stakes become all the higher for employers.
To shed light on the court’s pronouncement, let’s take a quick look at the Walker facts. Robin Walker worked on a production line for a maker of prefabricated homes. She claimed a male co-worker repeatedly (i.e., several times a week) made crude comments and gestures: “Two or three times a week, Mullins would grab his crotch and say, ‘these nuts are looking for you.’ With the same frequency, he would call out, ‘[t]here she goes, there it is.’ Mullins would stick his tongue out at Walker and other female employees and ‘snicker.’ Other times, he would grab his crotch and exclaim, ‘oh, oh, oh’ or say, ‘I bet you could holler real loud, couldn’t you.’ After Walker began dating a co-worker, Mullins also made comments to him within Walker’s hearing about Walker performing oral sex. Another male co-worker named Young made similar remarks on a weekly basis, and other female co-workers endured the same kinds of comments.” Walked claimed she complained to her supervisor, who essentially told her to ignore it (red flag going up!!).
The court acknowledged that “some factors pull toward a finding that the offensive behavior was actionable, while other factors pull in the opposite direction.” It is just this factual tug of war that led the court to send the case to a jury.
Why is this case important? It shows just how important it is for employers to take proactive steps to create and maintain a harassment free workplace. This means a solid policy, a clear complaint procedure, and training so managers know what to do if they receive a complaint and employees know what’s off limits at work.