We all are aware of the danger of second-hand smoke. Does the same risk arise with respect to second-hand discrimination? A recent case indicated that it can.

The issue in the case focused on a hostile work environment based upon sexual harassment. As you remember, in order to prevail on this type of action, a complainant must establish that she was subjected to such severe or persuasive unwelcomed conduct that the terms and conditions of her employment were altered and an abusive working environment was created. In the typical case, the unwelcomed conduct is aimed at the female employee.

In the reported case, a female employee was one of two women working in her office. In her eventual lawsuit against the employer, the employee testified that a male co-worker repeatedly told sexual jokes and used crude and sexually offensive phrases to refer to women other than her. She also claimed that another male co-worker frequently boasted of his sexual conquests and that every day, the co-workers listened to a radio program which included discussions of sexual topics.

The female employee asked her co-worker to stop using offensive language. He refused to do so. The employee complained to her supervisor, but to no avail. With respect to the complaint about the radio program, the supervisor told the employee to change the channel.

When she did this, the co-workers simply changed the station back to the offensive program.

Was the employee a victim of a hostile work environment based upon her gender? Remember, none of the offensive misconduct was directly aimed at her. The court held that a hostile work environment had been created. The unwelcomed conduct occurred almost daily, meeting the requirement that it be persuasive and severe. Even though the offensive language and comments were not aimed at the employee, the comments were sex specific.

Not every court may have decided this case the same way. Perhaps the significance of the case is to show how employers are at risk when they do not firmly respond to objectionable conduct in the workplace.

The issue of whether the language and the behavior constituted sexual harassment never would have arisen if the employee had stopped it when she first became aware of it.

Opinions expressed solely are those of the writer. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.