Phoebe Buffay And The ‘Friends’ Guide To Sexual Harassment

If you were around in the 1990s and early 2000s, you probably watched Friends on NBC. You might even own the entire series on DVD. Maybe you’ve watched it so many times through that you can quote almost every episode verbatim. Maybe you know it so well that when you play the Friends Scene It trivia game, you win on the first turn because you don’t miss a single question. Or maybe that’s just me.

Anyway, I was watching season one of the show recently and saw the episode where Rachel’s fleeting love interest, Paulo (the Italian down the hall with only modest command of the English language), went and got a massage from Rachel’s friend Phoebe, a professional masseuse. While he’s being massaged, Paulo grabs Phoebe’s posterior and then rolls over and exposes himself to her.

The scene ends and we next find Phoebe in the Central Perk coffee shop telling her friends about the encounter. The conundrum for Phoebe on the show is whether she should tell Rachel about what happened. She’s worried that Rachel’s going to be upset with her.

But what if Phoebe was so upset that she wanted to sue her employer for sexual harassment based on Paulo’s conduct? Would she have a claim?

As you can imagine, most sexual harassment cases involve people that work together. Usually the harasser and harassee are two co-workers, or an employee and his or her supervisor. That’s the typical case.

Courts have held, however, that Title VII of the Civil Rights Act of 1964 (and its state/local counterparts) also protects employees against discriminatory or harassing conduct from third parties, such as vendors or customers. For example, in Powell v. Las Vegas Hilton Corp., 841 F. Supp. 1024 (D. Nev. 1992) (one of the early cases addressing this issue, if not the very first one), a card dealer at a Las Vegas casino sued her employer based on sexually charged comments and remarks made to her by patrons of the casino.

The plaintiff claimed that patrons “constantly” made sexual comments and advances towards her, and that some patrons sat and stared at her in what she interpreted as a sexual manner. The issue was one of first impression for the court. The court held that the employer could be liable for its patrons’ conduct. The court went on to hold that whether the conduct at issue in the case constituted “severe or pervasive” harassment was a question of fact for the jury and declined to enter summary judgment for the employer.

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On the facts of Phoebe’s case involving only one incident of harassment, she might have a hard time establishing that the one incident with Paulo was “severe or pervasive” enough to withstand her employer’s inevitable motion for summary judgment.

In many of these cases, however, the case doesn’t end there. Phoebe was pretty flighty and sometimes not the most dependable. What if she’d been having a lot of attendance problems leading up to the Paulo incident, and her employer decided to fire her shortly afterward due to additional absences from work?

In that scenario, we could find Phoebe also suing her employer for retaliation under Title VII (or one of its state/local equivalents). This happened in Oliver v. Sheraton Tunica Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000), in which a cocktail waitress at a casino alleged that she was fired for complaining about sexual harassment by a customer. The employer claimed that she was terminated not because of her complaint, but because of “excessive absenteeism.” The employer ultimately won on that issue because there was not sufficient evidence to rebut the employer’s explanation.

There are a couple lessons to be learned here. First, employers can be liable for harassment of their employees by people unaffiliated with the company. Employers should have policies prohibiting such conduct and should take immediate action to stop and prevent this kind of behavior.

Second, employers can’t fire or otherwise discipline employees for complaining about harassment by third parties. That being said, however, employers can always terminate or discipline employees for legitimate reasons, even when the terminable offense occurs close in time to a complaint of harassment. In those instances, employers need to proceed carefully (and read my earlier post on good documentation).

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Phoebe didn’t sue her employer on Friends, and I’m glad quite frankly because she would’ve had a tough time winning. Plus, it would’ve taken valuable time away from her writing songs about smelly cats and what they’re being fed.


evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)