According to a Legal Intelligencer report, sexually explicit materials given to plaintiff Thomas Keown by co-workers, were not enough to make out a hostile work environment claim because they “did not place Mr Keown into a sexually threatening or humiliating position,” US District Judge Berle Schiller wrote.
Keown’s lawyer, Harold Goodman, argued that a pamphlet and Post-It note about erectile dysfunction were particularly offensive to Keown because he had a penile implant.
Schiller disagreed, saying, “There is no reason it should have interfered with his work performance or had a significant impact on his psychological well-being.”
Schiller also found that the pamphlets “were sent too infrequently – eight or nine pamphlets over a four-month period – to constitute harassment.”
At the same time, Schiller, of the Eastern District of Pennsylvania, ruled that the 50-something Keown could move forward with claims he was discriminated against because of his age, as well as charges that he was fired after complaining about the co-worker abuse.
According to court papers, Keown worked in the Norristown, Pennsylvania office of Richfood Holdings, where he was in charge of transportation and oversaw management information systems.
Beginning in October 1998, Keown said he found pamphlets containing sexual content in his work mailbox. One pamphlet was titled “Testosterone Levels: the Key to Great Sex for Men Over Fifty,” and discussed the possible benefits of the hormone androstenedione for sexual potency.
Keown said he confronted Penny Mitchell, Richfood’s accounting vice president, who admitted sending the pamphlet.
Mitchell allegedly told Keown: “You’re an older man. You’ve got gray hair. I thought they would be of interest to you.”
Between October 1998 and January 1999, Keown claimed he received up to 10 more sexually suggestive pamphlets.
All of the pamphlets were small booklets of about eight to 10 pages, he said, and some were more sexually explicit than others.
But the harassment was also age-based, Keown claimed, citing a December 1998 telephone conversation in which his direct supervisor, Charlotte Edwards, remarked: “Tom Keown, you’re getting senile on me” and slammed down the telephone.
In the final alleged incident of sexual harassment, Keown claimed he received a pamphlet that discussed erectile dysfunction in older men. Attached to the cover of the pamphlet was a Post-It note signed in the name of Keown’s wife.
Mitchell has admitted sending both the pamphlet and the note.
Keown claimed he was called to a meeting with the company’s chief operating officer and the head of human resources, that he believed was to discuss his complaints against Mitchell.
Instead, Keown claimed that his complaint was only touched on at the meeting, and he was denounced for his use of profanity at work and his performance and work ethics were criticized, despite consistently received high performance reviews and pay increases.
Keown also claims his boss recommended that he resign and that he did so several weeks later.
The case is Keown v. Richfood Holdings.