Monday, October 28, 2013

Were Employee’s Graphic Come-ons Typical Dating Behavior or Harassment?

I think we can all breath a sigh of relief that the following exchanges were not held to be part of the normal modern day dating ritual.  Sounds more like stalking to me.  

The following account of the case is from Dan Wisniewski at HR Morning:

This employee left little to the imagination when he messaged a co-worker about, shall we say, hooking up. But did it really qualify as harassment? 
Here are the details of the case
Benjamin Weinberg, a Navy lieutenant, met Maura Finigan, a Navy JAG, when he came to ask her for some legal advice. 
Weinberg apparently was smitten enough from their short meeting to send her a Facebook message, which stated, “I didn’t want to say it at the time, but you’re gorgeous.” 
Finigan later responded with “thanks for the compliment.” Weinberg then sent Finigan a friend request on Facebook which she accepted, and three short innocuous Facebook messages, to which she didn’t respond. 
Uh-oh … 
Then things got weird. Finigan received 11 text messages from a number she didn’t recognize, but which she confirmed days later through her client database to belong to Weinberg. 
The first text message stated “dtf?” which Finigan understood as an abbreviation for “down to f–k?” Many of the other text messages stated that Weinberg wanted to engage in oral sex with her. 
Two days later, Finigan woke up to see a long and sexually explicit Facebook message from Weinberg. In the message, Weinberg described graphic details of a sexual fantasy of engaging in oral sex with Finigan. Finigan then blocked Weinberg’s number from her phone and blocked him from her Facebook account.
Upset and scared 
Not surprisingly, Finigan became upset and scared, stating that her fear was caused by the “highly graphic nature of the message coupled with the fact that I have had very limited interaction with Mr. Weinberg prior to receipt of these messages (and that nearly all that interaction was on a professional, not personal, level).” 
According to Finigan’s declaration, Weinberg’s texts and Facebook messages “seem like erratic and unstable behavior, particularly for someone I met in a professional and highly limited context.” 
Finigan eventually filed suit against Weinberg. 
Was it harassment? 
Weinberg argued that his behavior was nothing more than part of the normal courting ritual of people in the 21st century:
The crux of [Defendant's] argument is that his conduct was nothing more than “crude behavior” in the context of asking [Plaintiff] to “date” him. He contends that “these types of contacts between men and women are not at all uncommon” and that [Defendant] was merely a typical woman who received “unwanted attention” from a “Casanova cad.” According to [Defendant], his conduct had the legitimate purpose of trying to ask [Plaintiff] to date him, a reasonable person would not suffer substantial emotional distress at being pursued for a date, and [Defendant] should not have continued to fear him, as he ceased contacting her. 
But a court saw things another way and ruled in favor of Finigan. 
Samur Mathur, writing on the IT-LEX blog, had the following slightly humorous takeaway for HR:
The opinion raises interesting issues about when you cross a line between Casanova Cad to Terrifying Ted, and societal baseline standards of decency and profanity. The Defendant here was a naval officer. ”Curse like a sailor” is an idiom, perhaps for a reason. While profanity may slide a bit more in Navy, certainly there was “conduct unbecoming an officer and a gentleman” occurring in this case. 
The case is Finigan v. Weinberg.