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AB 1825 Sex Harassment Trainer

A free resource for California employers about the sexual harassment training law (AB 1825).

Piercing punitive liability

Although the law protects everyone – both sinner and saint – from sexual harassment, Courts sometimes rule against victims (most often women) when they’ve engaged in sexualized behavior in the workplace.

Often, the Court finds the abuse suffered by these “bad girls” wasn’t enough to interfere with their ability to do their jobs. As explained by the EEOC, to qualify as sexual harassment, misconduct generally must "alter the conditions of the victim’s employment and create an abusive working environment."

However, Courts sometimes limit recoveries for female employees who participate in sexualized behavior at work, ruling the abuse they were exposed to didn't “alter” their working conditions; see the 2008 Brief: Bad Girls Can't Complain.

Last month, a federal Court in Delaware made a similar decision. In Laymon v. Lobby House, waitress/bartender Shannon Laymon sued the Lobby House pub for sexual harassment. She claimed management made sexist remarks and encouraged sexual behavior (including stripping) by female employees. She convinced the jury; they awarded her $500 for sexual harassment, plus $100,000 in punitive damages (which are designed to punish the employer and to serve as a deterrent).

The pub appealed, challenging the amount of punitive damages. After all, Lobby House argued, Laymon herself participated in skeezy behavior at the pub. “While at work, Laymon admittedly displayed her vertical hood piercing to two co-employees,” the Court wrote. It explained in a footnote: “A vertical hood piercing is a piercing in the clitoral area.”

And, based in part on her workplace genital-jewelry display, the Court cut her punitive damage award by 75 percent.

“Balanced against [the employers’ conduct] is testimony that Laymon participated in inappropriate conduct," the Court wrote, "and, that Laymon only complained of sexual harassment after she was confronted by management regarding her negative behavior. In balancing the ... factors, the court believes that reducing the amount of the punitive damages award is warranted, particularly in light of the conduct of both Laymon and Lobby House. As a result, the court will reduce the jury’s punitive damages award from $100,000 to $25,000....” [Laymon v. Lobby House (5/1/2009) USDC Delaware]
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