A female Texas firefighter, who claimed that her male colleagues viewed a nude video of her that was stolen from her personal computer, can proceed with her claim of sexual harassment against her former employer, according to a recent opinion by the 5th Circuit Court of Appeals.

Jane Doe (name withheld to protect her privacy) began working for the City of Houston as a firefighter in 2003. In 2008, a male junior captain working in the same station as Doe received an anonymous email containing an intimate, nude video of Doe that she made privately with her husband and saved on her personal laptop. Doe had brought her laptop to the firehouse.

The junior captain watched the video and told the male district chief about it, who asked to see the video. The junior captain played the video for the district chief while another firefighter was in the room. The district chief failed to report any of this to human resources, and instead asked the junior captain to send him the video because he “wanted to see it again.” Instead, the junior captain provided the district chief his password so the video could be viewed.

A year later, the district chief contacted the junior captain because the password would not work and he wanted to watch the video. The junior captain emailed the video to the district chief. According to the case, the junior captain “continued to watch the nude video of [Doe] multiple times over the next several years.”

Doe learned of these events in May 2017 when the district chief confessed to Doe’s husband (also a firefighter) that he had seen a nude video of her. Doe was “completely distraught” and “disgusted.” She then suffered from post-traumatic stress disorder and took six months leave. She was awarded worker’s compensation after it was determined she suffered “a compensable mental trauma injury.” In 2019, the City of Houston “medically separated” her from the city.

While Doe did complain to the city about this course of events, she alleges “(1) she was not told how widely the video had been distributed throughout the Fire Department, (2) she did not know whether any copies of the video continued to exist and were still in the possession of others, and (3) there were no assurances that [Doe] would not be required to work in the future with” the two men who watched the video.

Doe sued for sexual harassment alleging she was in a hostile work environment. On the city’s motion for summary judgment, the district court dismissed the case, holding, “[b]ecause [Doe] cannot show that she was subjected to a hostile work environment — just that she is angry and embarrassed — her sexual harassment claim fails.”

The 5th Circuit Court of Appeals disagreed, and determined that a jury should decide whether she could meet the elements necessary to show she was in a hostile work environment, including that the conduct was based on her sex, it was subjectively and objectively offensive, that it was severe or pervasive and there was notice to the city.

The court concluded that “a jury could surely find that the decision of two men to repeatedly watch a nude video of their female coworker was motivated by the fact that she was a woman. The harassment was based on sex.”

The court concluded that the city knew or should have known of the conduct. The court held, “[t]he City is hard pressed to explain why [a supervising employee’s] knowledge of harassment should not be imputed to the City when its own policy placed an affirmative duty on him to pass such information up the chain of command.”

The city didn’t fire the two men accused of watching the video and gave them some level of discipline.

There is so much wrong with this case.

Most importantly, women deserve to be treated not as sex objects, but peers. This “boys will be boys” behavior at work needs to stop. Only leadership can make this happen, but too often, as in this case, leadership engages in it and even encourages it.

Employers must make a rule, at a minimum, that sexual conversations and behaviors at work cannot be tolerated, even if no one is offended. This includes any sexual images, videos or pictures that are brought into the workplace.

Employers also need to make sure managers understand they have a duty to report any sexual misconduct (or other forms of harassment) so that an investigation can be conducted.

Eradicating harassment is not complicated, but it requires a leadership commitment to cultural change. This starts with setting expectations through policy and training, and then holding employees accountable through real action.