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Can You Punish Employees For Professing Their Love For “Boobies”?

| Nov 29, 2012 | Practice Areas |

Employers may face a difficult decision – stop employees from professing their love of “boobies” or allow a potential claim for hostile work to grow.  In the non-employment related case, H. v. Easton Area School District, U.S. District Judge Mary McLaughlin of the Eastern District of Pennsylvania held that the Pennsylvania school district violated two female middle school students’ First Amendment rights when it disciplined them for attending school while wearing breast cancer awareness bracelets that bore the slogan “I (heart) Boobies! KEEP A BREAST.” This weighed pitted free-speech rights, public-health efforts, and need to enforce discipline and promote order in public schools. The teenage girl, whose names are not given in the suit, got a temporary injunction enjoining the school from enforcing its ability to discipline the students form wearing the bracelets.

Easton’s attorneys argued that the “boobies” bracelets were lewd and vulgar, or alternatively, they substantially disrupted the work and discipline of the school. Easton had school principals testify that they viewed the term “boobies” as “an impermissible double entendre about sexual attraction to breasts.” The court rejected this argument, holding that the statements needed to be examined in context.

The bracelets are distributed nationwide by the Keep A Breast Foundation, a nonprofit that promotes awareness of breast cancer by women under 30. The students, who had parental permission, testified that they did not mean to express a sexual message by wearing the bracelets to school.

In his opinion, Judge McLaughlin held that: “If the phrase ‘I (heart) Boobies!’ appeared in isolation and not within the context of a legitimate, national breast cancer awareness campaign, the school district would have a much stronger argument.”

As far as the use of the term “boobies,” Judge McLaughlin held that rather than being a “lewd and vulgar” term, it matched the vocabulary of the target audience, teenage girls, who testified that “boobies” is the word that they generally use to refer to their breasts.

 So what do employers do if one employee is wearing a bracelet that offends other co-workers?  Well, it will depend on the particular situation, which is why you should always talk with an attorney.  However, unlike public schools, private employers don’t owe their employees a right of free speech in the workplace.

On the flip side, could an employer’s wearing of such a bracelet create a hostile work environment?  Not likely if that is the only actions that are being taken.  However, if the boss has also been making quid pro quo demands to feel up employees, such a “boobie” bracelet takes on a whole new meaning.  But, employees should not guess what their employment, gender and sexual harassment rights are, get legal help from employment lawyers.

On a side note, how many attorneys out there get to make very serious legal arguments peppered with the term “boobies.”  And, if anyone is offended by my use of the word “boobies,” well – sorry.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 271-3742. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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