Others’ Sex On Your Desk Is Not Discriminatory

By Bill Wright

Members of the night crew were using an employee’s desk for sex. The desk was selected because it was in an office equipped with a curtain and a locking door. The employee who used the desk during the days eventually learned of the night crew use. When she complained, she was told to simply clean her desk each morning. The complaining employee was later discharged for having a sexual relationship with a senior co-worker (which allegedly included sex in his office).

The Seventh Circuit recently ruled that, on these facts, the employee’s discharge could not have been retaliation in violation of Title VII. In fact, the sex on her desk did not even count as sex harassment. Others having sex on her desk was “because of sex,” but not because of the employee’s being female.

Nevertheless, the court strongly disapproved of the general sexually-charged atmosphere at the workplace and allowed the employee to proceed with hostile work environment and discrimination claims, without regard to the sex on her desk. The court seemed to think that more decorum would be appropriate at a maximum security prison. Orton-Bell v. Indiana, No. 13-1235 (7th Cir. July 21, 2014).