Charles S. Plumb and Sam R. Fulkerson, Editors
McAfee & Taft

Vol. 16, No. 5
May 2008

HOSTILE WORK ENVIRONMENT

Sexual harassment must be 'because of sex'

Charles S. Plumb

With all the media coverage, most Oklahomans are sadly all too familiar with Donald Thompson's antics as an Oklahoma district court judge for Creek County. Two former employees sued Judge Thompson and the state of Oklahoma, complaining that being exposed to the judge's actions amounted to sexual harassment.

Facts

Judge Thompson was convicted of four felony counts of indecent exposure and sentenced to four years in prison for secretly using a device described as a "penis pump" while in his judicial chambers and while on the bench during trial.

Unbeknownst to Judge Thompson, his secretary/bailiff, Zelma Hindman, and court reporter, Lisa Foster, had become aware of and observed his activities. During the investigation of the judge's conduct, Foster was questioned by the Council on Judicial Complaints. After she told it what she had seen, Thompson terminated her. He fired Hindman shortly after. Following her discharge, Hindman also reported to the Council on Judicial Complaints what she had seen.

Among a number of other claims, both Foster and Hindman sued Thompson and the state of Oklahoma for subjecting them to a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Although Judge Kern found that Thompson's behavior was "incredibly offensive, vulgar and crude," he dismissed the Title VII hostile work environment claims.

Title VII is a law prohibiting discrimination in employment based on an individual's gender. When an employee claims she has been subjected to a hostile work environment, she must show the harassing behavior was based on her gender. To put it another way, the employee must demonstrate the harassment was "because of sex."

Although Thompson's actions were revolting and inexcusable, there was no evidence he was motivated by the fact that Foster and Hindman are female. First, he was indiscriminate about who might be potentially exposed to his actions. In most cases, men and women were present.

Second, Thompson didn't know that Foster and Hindman had become aware of or viewed his conduct. That reinforced the idea that he hadn't directed his actions toward them because of their sex, and they couldn't show their gender played any part in his harassment or that his actions were somehow motivated by the fact that they are female. Unquestionably, "Thompson's conduct was motivated by poor judgment and vulgarity." However, Foster's and Hindman's Title VII hostile work environment claims didn't survive.

Thompson and the state of Oklahoma are by no means out of the woods. The case is scheduled to go to trial on Foster's and Hindman's claims of wrongful discharge and Title VII retaliation. Foster v. Thompson and the State of Oklahoma, Case No. 05-CV-305 (3/4/08); Hindman v. Thompson and the State of Oklahoma, Case No. 05- CV-306 (3/4/08).

Bottom line

No question conduct like that exhibited by Thompson is unacceptable in any workplace. While the fact Thompson did not direct his actions toward female employees may defeat a sexually hostile work environment claim, the remaining wrongful discharge and retaliation claims are dicey.

You may contact the author at cplumb@dsda.com.

Copyright 2008 M. Lee Smith Publishers LLC

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