The Full Monty is Still Full-on Sexual Harassment—The Tenth Circuit Gets It RightFrom the “You’d Think This Would Be Obvious” file in August, the Tenth Circuit reversed a district court’s granting of summary judgment in favor of an employer in a case in which a male employee allegedly exposed his genitals to several co-workers on multiple occasions. The plaintiff, Ms. Yvonne Macias, worked at the Southwest Cheese Company alongside a male employee, Cody Stewart. She alleged that shortly after she started work in 2009, Mr. Stewart exposed himself to her and a coworker, and she promptly complained to a shift supervisor. In addition, in 2008 (before Ms. Macias worked with him) Mr. Stewart allegedly photographed his genitals at an off-site work social function (sounds like quite a party) and passed the photos around the workplace. Ms. Macias also alleged that Mr. Stewart “sexually leered” at her on numerous occasions and that he exposed himself to another female coworker twice in 2010.

Ms. Macias filed an action against Southwest Cheese and included a claim for hostile work environment. The lower court granted summary judgment against Ms. Macias on the hostile work environment claim by finding that the conduct in question was “neither severe nor pervasive enough because it transpired over twenty months.” Despite the fact that Mr. Stewart had exposed himself three times with three different women (viewing the facts in the light most favorable to Ms. Macias), the employer characterized it as a “single episode” that did not meet the hostile work environment standard. The employer argued that the Court only recognizes severe, though limited, harassment in cases involving sexual assault.

The Tenth Circuit strongly disagreed. It found that Mr. Stewart’s actions were “more than a mere offensive utterance; it was not only physically threatening and humiliating—if true, it was also criminal.” The Court noted that even without an allegation of physical contact, an employee’s flashing of another was “extremely serious.” (and perhaps obviously support a claim for sexual harassment). The Tenth Circuit reversed the summary judgment.

While this decision probably reinforces the admonition to employees that they “keep their business in their pants,” it also shows the flexible analysis that some courts may employ when examining claims of hostile work environment. The lower court’s focus on the passage of time is a telling factor. Employers need to remember to take all allegations of sexual harassment seriously and should investigate every instance.