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A male restaurant employee’s few social contacts with a male homosexual manager who sexually harassed him in no way diminished the employee’s case against the employer, ruled the 7th U.S. Circuit Court of Appeals. The employee complained repeatedly to the manager about his litany of sexual propositions, inappropriate touching, and nonverbal gestures of a sexual nature. The employee testified about these at trial, along with the fact that he found these overtures unwelcome, degrading and offensive. The behavior, which started the first day of the worker’s employment, continued until the employee “got real forceful” and told the manager, “no means no … and if you ask me again, there’s going to be some serious problems.” The manager fired him the next day, claiming the employee had inappropriate interactions with coworkers, superiors and others. Cooke v Stefani Mgmt. Serv., Inc., (7th Cir., 80 EPD 40,564). The employer claimed as part of its defense against vicarious liability that the worker could not have found the behavior severe and pervasive because he sometimes visited the restaurant on his days off, running into his manager on those occasions. He also wrote a thank you note to the manager for a bottle of wine, and once, he went out with a group of employees and the manager to a social function. The 7th Circuit rejected the argument, stating that the balance of power inherent in the manager and employee relationship strongly favored the manager, in that he had the authority to hire, fire and discipline at will. In a social setting, noted the court, the employee had more power to leave the scene should harassment begin. The court also pointed out that the supervisor was more likely to harass the worker when he was alone on the job than at social gatherings. Merely being courteous by thanking someone for a gift also failed as an argument to undermine the employee’s case. Thus, the circuit court affirmed as reasonable the jury’s verdict in favor of the employee. � 2001, CCH INCORPORATED. All Rights Reserved.

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