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Despite a near 20-year history, a male employee's allegation of sexual harassment by way of a male coworker's unwanted sexual banter about females was insufficient to establish a hostile work environment under Title VII and the Missouri Human Rights Act, concluded the Eighth Circuit Court of Appeals. (Nitsche v CEO of Osage Valley Elec Coop, 8thCir, 87 EPD ¶42,345)
The employee contended that throughout his employment he was subjected to unwanted sexual banter by a coworker; the banter was about females, which the employee found "highly offensive." For example, the employee alleged that he was regularly subjected to pictures of nude women, often told to go get a Pap smear and forced to hear crude slang terms about female genitalia. In addition, on two or three occasions over the course of his employment, the coworker called the employee a "stub" because of the size of his fingers and "remarked a man with stubby fingers has a short penis." While the employee alleged that the coworker made the inappropriate comments in order to embarrass him, he also admitted that he laughed at some of his jokes. The employee admitted that although the coworker also told jokes to female coworkers, he only told "off-color jokes or jokes with a sexual connotation" to men.
Affirming summary judgment in favor of the employer, the Eighth Circuit held that the employee failed to demonstrate that the harassment he encountered was sufficiently severe or pervasive to alter the terms, conditions, or privileges of his employment. Although the coworker had seniority over the employee, he did not have the authority to fire him, reduce his salary or control his hours. Even though the coworker's sexual banter was "crude and immature," his conduct occurred sporadically over the course of 20 years, was not physically violent or threatening to the employee and did not unreasonably interfere with his work performance.
Other conduct by the coworker, which included him posting a picture of a donkey and drawing a picture of a penis over another coworker's engagement picture (which was located on a company bulletin board), putting snakes and mice in the employee's lunch box and authoring a "belittling" poem about the employee spilling a container of molasses from his truck "did not involve any sexual conduct or connotation." The coworker's other comments "were not so frequent, intimidating, offensive, or hostile to have poisoned the work environment," concluded the court. Explaining that "Title VII is 'not designed to purge the workplace of vulgarity,'" the Eighth Circuit concluded that the employee failed to demonstrate an actionable hostile work environment claim.
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