Yep. I'm in HR and as a warning to all, she could be smiling and laughing along, and then turn around and report you and it would be legitimate.
HR would be required to investigate, that is certainly true, but under Federal laws and the vast percentage of state laws, the harassment must be severe or pervasive to be actionable. That minimum level of conduct is much, much higher than a few jokes, particularly jokes where the coworker laughed.
For example, in a case entitled
Kortan v. California Youth Authority (9th Cir. 2000) 217 F.3d 1104, the plaintiff alleged she was subjected to sexual harassment by her supervisor, who he referred to one female as a “regina,” and said that the woman “laughs like a hyena.” He also referred to a former assistant superintendent as a “madonna,” “regina” and a “castrating *****.” In the same conversation, the supervisor referred to women generally as “*******” and “histrionics.” The plaintiff alleged that the supervisor countermanded her orders, falsely criticized her work product, and gave her a negative performance evaluation, all due to her gender.
The employee complained about the supervisor's behavior, and after the complaint the supervisor started to give her “the looks” and to stare at her instead of smiling, as he had before. The supervisor told the plaintiff, “All this time, I assumed you were ‘Artemis' ... I made a mistake, and you are not ‘Artemis.’ You are ‘Medea.’ The employee also heard the supervisor laughing outside her door, saying “Yeah, she got me on sexual harassment charges. Ha. Ha.” (
Kortan, supra, 217 F.3d at 1107.)
Beginning February 2, 1994, the supervisor also created a hostile work environment by using racist and sexist terminology, and that after complaining about his conduct, the plaintiff was given a lowered performance rating, had a temporary transfer request denied, and had been threatened with disciplinary action if she spoke about the allegations. (
Kortan, supra, 217 F.3d at 1108.)
The trial court dismissed the lawsuit without allowing it to go to a jury, finding that "though supervisor's sexually-related comments about women were offensive,
the conduct was not frequent, severe, or abusive enough to interfere unreasonably with plaintiff's employment, as required for Title VII sexual harassment claim." (
Kortan, supra, 217 F.3d at 1113.)
In short, a harassment claim is more difficult to prove in civil litigation than most believe.
