Don’t let your employees make more than four sexually harassing comments, although telling an employee repeatedly that “she had to clean the trailer while wearing a French maid’s costume” may be OK.

In a Nevada case, a co-worker of a woman employee told her that “a large-breasted woman, whom he called ‘Double D,’ would attend a company event, and asked her ‘whether the size of the woman’s breasts intimidated her.’  He later spoke to her about tampons and "asked whether women ‘got off’ when they used a particular kind.” He also told her that “women were lucky because [they] got to have multiple orgasms.”  

Additionally, whenever she saw the co-worker or answered his phone, he told her that “she had to clean the trailer while wearing a French maid’s costume.” 

Plaintiff demanded each time that these comments stop, and reported each incident to the company president, but the comments continued.

At this point, if we had been counsel to the company, we would have been alarmed at these comments and the behavior of the co-worker (and the plaintiff’s supervisor, who apparently witnessed most of these comments and plaintiff’s protests). We have always advised a zero-tolerance policy towards sexual harassment, and appropriate training for managers and employees, and would have looked at these comments as a cause for concern.

But a federal appeals court felt differently and was not as concerned.  It preliminarily noted, correctly, that a hostile work environment is caused by offensive sexual conduct which is so severe or pervasive that it alters the conditions of the plaintiff’s employment and creates a work environment that a reasonable person would consider hostile or abusive.  Nonetheless it found that the plaintiff “did not make out a prima facie case of sexual harassment because the evidence will not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive.”

The Court held that “[a]lthough we certainly do not condone [the] crude and offensive remarks, we note that … [o]ther than his references to the French maid’s costume, [the co-worker] reportedly made offensive sexual remarks to [plaintiff on only about four occasions.”

With due respect to the court, we still advise employers to adopt a zero-tolerance policy and appropriate training, and do not think it is wise for employers to accept a “four times is OK” policy for acts of sexual harassment.  Nor do we advise employers that it is OK to tell a female employee that she has to wear "a French maid’s costume" — repeatedly, or even once or twice.