Retaliation Claim, Arising From Expressed Concerns About “Racy” Photo, Survives Dismissal

While I typically write about new developments in the law, every so often I come across a court decision that, while older, is interesting enough to warrant discussion here.

One such case is Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403 (S.D.N.Y. 1996). In sum, the plaintiff here was terminated, she alleges, in retaliation for complaining about a “racy” photograph she was exposed to in connection with her job. It concerns the interesting intersection of (1) the law of employment discrimination, gender discrimination, and sexual harassment, and (2) First Amendment “obscenity” law.

It opens:

Obscenity, like beauty, is often in the eye of the beholder. The subjective nature of obscenity has an impact not only on First Amendment jurisprudence, see Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (while acknowledging difficulty of defining obscenity, Justice Stewart stated, “I know it when I see it”) (Stewart, J., concurring)), but also, as this case demonstrates, on claims of gender discrimination.

The court summarized the pertinent facts as follows:

Ms. Iannone’s claim of retaliation arose out of an incident involving a viewgraph, that is, a picture prepared for projection onto a screen. In July 1992, Mr. Posch was preparing a presentation on leadership skills for the company’s Young Associates Forum, a series of training sessions. His secretary sent Ms. Iannone copies of the materials to be transformed by the graphics department into viewgraphs for the presentation. Among these was a photograph that Ms. Iannone considered sexually suggestive. It depicts the face and bare shoulder of a woman who appears to be removing a jacket. The picture had been taken from Playboy magazine, and the original that the plaintiff was given had a photograph of a nude woman on the reverse side. Mr. Posch intended to use the picture, along with one of the “Marlboro Man,” to illustrate the point that beauty is not an attribute of leadership.

After receiving the materials for the Young Associates Forum, Ms. Iannone called Jennifer Zimmerman, one of the graphics department employees, into her office. Ms. Zimmerman was shocked at the picture Mr. Posch had selected, and she asked Ms. Iannone *409 not to be assigned to work on it. The plaintiff also spoke to other graphics department employees about the picture.

Ms. Iannone then met with Mr. Posch to review the materials for the presentation. She told him that she and others in her department were uncomfortable with the picture he had selected and did not want to be involved with it. Mr. Posch responded heatedly that the picture was not lewd, immoral, or illegal, and he told the plaintiff that it was not something she should resign over. After discussing the issue further with Frederic R. Harris’ general counsel and with a supervisor, Ms. Iannone ultimately prepared the viewgraph.

On October 6, 1992, Ms. Iannone was terminated. She was informed of her discharge by Ms. Dewland, who told her in substance that she had not been keeping up with technological changes in computer graphics. Following the termination, Ms. Dewland filed a performance evaluation for Ms. Iannone that reiterated this criticism, and that also found fault with her responsiveness to direction and her ability to work on team projects. Prior to her termination, Ms. Iannone had received three annual evaluations, including one made shortly after she had become manager of the graphics department. In each case she received ratings of good or excellent in every category.

[Citations omitted.]

At trial, a jury found Frederic R. Harris liable on plaintiff’s retaliation claim, but not on the sexual harassment claim. Defendant moved for judgment as a matter of law or, in the alternative, for a new trial; Judge Francis denied that motion. Defendant challenged only one element underlying the jury’s verdict, namely, its finding that plaintiff engaged in “protected activity.”

Judge Francis explained the “black letter” law regarding that element:

Protected activity includes the registering of a complaint about a Title VII violation. The complaint need not be a formal claim filed with a court or administrative agency; it may simply be an objection voiced to the employer. Moreover, the plaintiff in a retaliation case need not demonstrate that the conduct complained of was in fact a violation of Title VII. Rather, the plaintiff must establish that he or she was acting under the good faith, reasonable belief that such a violation existed. Accordingly, a good faith mistake, whether of fact or law, regarding the legality of the employer’s conduct will not strip the plaintiff of Title VII protection against retaliation. Whether an erroneous complaint was asserted in good faith will be determined in part by the extent of the plaintiff’s legal sophistication. Thus, for example, an attorney or equal employment opportunity specialist will be held to a higher standard of expertise about Title VII than a layperson. [Citations, including parentheticals, omitted.]

Applying the law, the court explained:

Here, Frederic R. Harris contends that Ms. Iannone did not have a reasonable, good faith belief that requiring her to work on the viewgraph constituted sexual harassment in violation of Title VII. As with complaints about any other form of discrimination, “[o]pposition to sexual harassment is protected from retaliation by an employer.” Magnuson v. Peak Technical Services, Inc., 808 F.Supp. 500, 515 (E.D.Va.1992). Moreover, *411 sexual harassment is not limited to unwanted physical touching; it can also consist of the display of obscene visual representations or the communication of sexually offensive remarks. See, e.g., Baskerville v. Culligan International Co., 50 F.3d 428, 430–31 (7th Cir.1995) (pornographic pictures may be element of sexual harassment claim); Trent v. Valley Electric Ass’n, Inc., 41 F.3d 524, 525–27 (9th Cir.1994) (retaliation plaintiff reasonably believed that use of foul language and sexually offensive references by instructor at meeting constituted sexual harassment). Thus, if Ms. Iannone reasonably believed the viewgraph to be sexually offensive, then her complaint about it constituted protected activity.

Certainly not everyone would share the plaintiff’s sensitivity about the picture in question. It is a head and shoulders shot of an attractive woman with a mildly provocative expression. Much contemporary media advertising comes far closer to pornography than does this photograph. The viewgraph would stir an extreme reaction only in “a woman of Victorian delicacy—a woman mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity.” Baskerville, 50 F.3d at 431. Thus, as the jury found, the viewgraph, even coupled with the plaintiff’s other allegations of harassment, did not amount to direct gender discrimination.

Nevertheless, the belief that it did was not unreasonable. The photograph did, after all, come from an erotic magazine and was intended to be sexually suggestive. A nude woman was depicted on the reverse side. Moreover, Ms. Iannone was not alone in her reaction; other women on her staff were offended as well. Thus, she could reasonably believe that requiring her to work with the photograph constituted sexual harassment in violation of Title VII.

The defendant argues, however, that Ms. Iannone in fact had no such belief. Frederic R. Harris relies on testimony where the plaintiff declined to characterize the viewgraph as “illegal” and instead referred to it as immoral or inappropriate. (Tr. 98, 100). But that testimony appears to have referred to the legality of the viewgraph itself, not to the conduct of Mr. Posch in demanding that Ms. Iannone work on it. In order to be the instrument of harassment, a sexual depiction need not be so obscene as to be “illegal” in the sense that its distribution could be banned without violating the First Amendment. By admitting that the photograph was not itself illegal, Ms. Iannone did not suggest that she thought that Mr. Posch could legally require her to prepare it.

Based on this, the court concluded that the plaintiff did engage in “protected activity” when she complained of her assignment, and denied defendant’s motion(s).

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