Celebrities lately seem to be having a hard time keeping their clothes on.
Whether it’s one of the Kardashian sisters baring her bottom or Keira Knightley baring her bosom, you can hardly look at any social media site these days without being assaulted by celebrities in various degrees of naked-idity, as Radar O’Reilly once called it. While the exhibitionism has recently arisen mainly among the ranks of female celebrities, there has been no shortage of male body parts on display in recent years, what with NFL quarterbacks, New York politicians, and others seemingly unable to resist the urge to use their smart phones to do dumb things.
All of which raises an interesting employment law issue: How does a company’s policy against sexual harassment deal with conversations that employees might have about current events, when those events can at times be sexually charged? If an employee forwards the Kardashian photo to a co-worker, is he violating the policy? What if he merely references the photo as further proof (as if we needed it) that nothing Kardashian-related has any redeeming social value? What if several coworkers engage in a spirited intellectual debate about the statement of female empowerment that Knightley claims she was making with her revealing photo?
As a side note, readers who are of a certain age may remember that a similar issue arose in the late 1990s, when a Wisconsin jury awarded $24 million to an employee who was fired for telling a female coworker about a “Seinfeld” episode with sexual overtones. While that case, contrary to its media portrayal, was not really about the right to discuss adult-themed sitcoms in the workplace, it didn’t matter in the end, because the verdict was thrown out on appeal.
Anyway, when does a discussion of current events turn into a violation of your sexual harassment policy? Like many other employment law issues, (1) it’s complicated, and (2) it really turns on common sense. An employee who forwards a nude celebrity photo to a coworker accompanied by a lewd comment does not somehow gain legal protection because the photo appeared in a classy magazine rather than Penthouse. By the same token, the employees having an intellectual discussion about Knightley’s political motivations are clearly not engaging in a communication of a “sexual nature,” even if the topic does involve a partially nude actress. In other words, just because a conversation relates to a subject that in certain contexts can be sexual (e.g., nudity), it’s not necessarily sexual in other contexts.
Similarly, there are words that can be sexual in some contexts, but not in others. One particular well-known and popular “swear word,” for example, clearly has a sexual connotation in some contexts, but at other times can simply mean “Go away, now!” or “What the ... heck?” Not even the most creative plaintiff’s lawyer or aggressive EEOC investigator would likely claim that such utterances constitute sexual harassment, although to be sure, the use of such language in the workplace certainly might violate other company policies.
To put it even more simply, ask yourself, “Would I be embarrassed if my parents walked in on that?” A scholarly discussion of the nude body in late Renaissance art? Dad may find it awfully boring, but it’s probably not an example of sexual harassment. An employee displaying a life-sized poster of Will Ferrell streaking? You probably wouldn’t want Mom to see it, so that’s a good indication that it’s probably time to train your employees on that sexual harassment policy. Because really, the Kardashian sisters are distasteful enough already-why make it even worse by having them pop up as Exhibit A in a sexual harassment lawsuit you’re defending?