Sexual harassment: bad behavior may cost big bucks.

• Author: Magelby, James E.
• Position: Legal Briefs - Utah jurors treatment of harassment cases

IS CARVING A PIECE OF FRUIT to look like genitalia, and leaving it on a female employee's desk, an act of sexual harassment? One jury in Utah thought so. Business owners learning of questionable conduct of a sexual or gender-related nature should take note of this issue. What used to be considered funny is not anymore, but in a time when many think political correctness has gone too far, how does an employer know what is acceptable and what is not?

One juror survey conducted in 2001 found that jurors overwhelmingly believe that sexual harassment is still a common occurrence in the workplace but that it is more subtle than in the past. The same survey found that jurors expect employers to be proactive and will punish an employer who does not react promptly to complaints. So, what do Utah juries care about?

Employment attorney Roger Hoole believes that Utah juries remain sensitive to truly outrageous behavior and recognize an untenable defense. "In one case, we had a defendant supervisor who claimed his relationship with the female employee was consensual. By the time we got to trial, he was claiming they had about 150 sexual encounters in a six-month period--that's almost once per day. It was simply unbelievable, it was offensive, and the jury didn't buy it," Hoole explains. The verdict from the jury was over six figures, and the plaintiff was also awarded attorney fees.

However, juries in conservative Utah are not easily fooled and won't give a big award to someone they perceive is looking for a handout. Hoole opines, "Utah has a strong work ethic, and that is reflected in the conservative approach taken by jurors in cases that don't have facts to support the claim."

Attorney Michael O'Brien, who regularly advises and defends employers on employment issues, believes that the employer's front-end policies and responses remain the key to the back-end result from the jury. "Jurors seem to react best to employers...