No Happy Ending for Employee Who Took Photos of Co-worker’s Crotch

It is generally not a good thing when an employee takes a sexual harassment investigation into her own hands. When that investigation involves an employee taking photographs of a disabled co-worker's crotch area, and the employee shows those photographs to not only management but other employees, it should come as no surprise that the photographer is discharged.

In Furcron v. Mail Ctrs. Plus, LLC (11th Cir., No. 15-14595, 12/16/16), a case out of Atlanta, the plaintiff complained that a co-worker with Asperger's syndrome was sexually harassing her. The plaintiff, Furcron, alleged that during the six days she and the disabled co-worker, Seligman, worked together in late 2012, he frequently invaded her personal space while his penis was erect. He also stared at her, tried to look down her shirt and at her underwear when she bent over and rubbed up against her while in a state of arousal. Furcron took photographs of Seligman's crotch to document what she perceived as asexual harassment. She alleged that when she showed the photographs to management employees, they either laughed or told her Seligman meant no harm and ultimately failed to remedy the situation. Furcron also showed the photographs to at least three non-management employees before showing them to a manager. As a result, Furcron was terminated for violating the company's policy against harassment.

Furcron filed a lawsuit and alleged that she was terminated in retaliation for complaining about sexual harassment. She also brought a claim of sexual harassment based upon Seligman's behavior and the company's failure to address it. The Eleventh Circuit Court of Appeals held that summary judgment was proper on Furcron's retaliation claim because Furcron failed to rebut the employer's explanation that her discharge was based on her violation of a company policy prohibiting harassment in the form of "graphic material" based on sex or disability.

However, the Eleventh Circuit also held that summary judgment was not proper on Furcron's claim of sexual harassment, and the Court also held that the district court improperly excluded another female worker's affidavit stating that Seligman also harassed her and that she witnessed him rubbing up against Furcron.

This case also illustrates the delicate situation where the employer must deal with behavior that some workers may find offensive, but the behavior may be caused by another worker's disability. However, as we have advised on numerous occasions, it is never in a company's best interest to ignore or laugh at any employee's complaint of harassment.