Dunce.jpgEmployers and their HR professionals may want to sit down before reading on: If a manager in your company text messages a picture of his “fully erect penis” to an employee and then fires that employee the day after she brings this to your attention, you will probably be sued. In other news, water tends to be wet.

As to text messaging shenanigans, a lawsuit filed in Genesee County, Michigan Circuit Court (PDF) (don’t worry there are no “Exhibits” attached to the complaint) claims that Suski Chevrolet Buick fired an employee the day after she complained that her boss emailed her a photo of a “fully erect penis.” The Complaint further alleges that the boss threatened to “bury” and “harm her if she sued for sexual harassment.”

Suski is being sued under Michigan’s Elliot-Larsen Civil Rights Act for sexual harassment based on a hostile environment, retaliation, and other related claims.

The Take-Away

This lawsuit was only filed in the last couple of days. And there is always two sides to every story (maybe?). But in any event, this blog rarely, if ever, gives out free legal advice, however, today is an exception: 

Based on my years of employment law experience and an otherwise keen intellect, I highly recommend that your company’s managers should not be texting pictures of fully erect, partially erect, or even a flaccid penis. In my 13 plus years of practice, I’ve never encountered an exception to this rule. And if for some reason this rule is violated, don’t follow up with threats of burying or harming anyone if they share the picture.

If for some reason a manager believes that sending a picture of his (or her) genitalia is simply just the right message for that situation, as a company carefully evaluate whether you have a legitimate basis to fire the employee if he or she decides to report the incident. And if your company concludes that firing the employee the day after the incident is reported just makes sense, you should probably get a second opinion from your employment attorney.

In all seriousness, every business needs to have an effective and meaningful anti-harassment policy. At a minimum, that policy should include three fundamental components:

  1. A statement prohibiting harassment, including sexual harassment; 
  2. A definition of harassment; and 
  3. An easy procedure to encourage employees who believe they have been harassed to complain, as well as assurances that there will be no retaliation for filing a report.

For more information about preventing and responding to sexual harassment or other workplace discrimination issues, contact employment attorney Jason Shinn. He works with businesses to comply with federal and Michigan employment laws, as well as litigating these issues in state and federal courts.