‘That’s too funny’ – employee defeats her own claim

A recent decision by a federal court in Illinois highlights the importance of employers conducting prompt and thorough searches of employee email and Internet usage when claims of discrimination and harassment are raised. Conversely, employees should consider and review their own conduct before raising claims that they are offended by the conduct of others.

In Jacober v. Dep’t of Agriculture, Betty Jacober claimed a sexually hostile work environment because, among other things, her male supervisor had a female intern take photographs of him wearing bib overalls with no shirt underneath, exposing his bare shoulders and part of his chest, and then inserted the photos into a PowerPoint presentation at work.

In dismissing the lawsuit, the court relied heavily on evidence that Ms. Jacober’s work email showed she had sent and received pictures of males wearing less clothing, including one email showing a man with a bare buttocks, about which Ms. Jacober emailed to the sender, “That’s too funny,” and then forwarded the image to others.

“Plaintiff’s own actions therefore make it unbelievable to this Court that she could find the photographs [of her boss] to be unwelcome sexual conduct that made her work environment intolerable,” Judge William Stiehl wrote. “She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her manager].”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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