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Summer Reading: Is the “Mommy Porn” in “Fifty Shades of Grey” Workplace Safe?

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance

Is someone bringing “Mommy Porn” (The New York Times words, not mine) into the workplace?

Summer Reading?

Yes, THAT book, 50 Shades of Grey, has been making the rounds.

And chances are, with Memorial Day weekend upon us, more than a few people will be bringing it to the beach, or perhaps to the lunch room next week when they haven’t quite finished the book.

For those that have been living under the proverbial rock this year, let me give you a (fairly tame) excerpt of the book:

He’s naked except for those soft ripped jeans, top button casually undone. Jeez, he looks so freaking hot. My subconscious is frantically fanning herself, and my inner goddess is swaying and writhing to some primal carnal rhythm.

The Daily Beast (yes, there is some irony with the name) recapped the steamier parts if you are intrigued.  (You have been warned.)

But it leads to a more serious question: Should employers be banning this book from the workplace? After all, the “real” porn — pin-up calendars, internet videos and Playboy magazines — has been banned for years. Should this book be any different?

Before I address the question, it’s best to remember the standard that courts will use to look at this issue.  One court recapped the law on ”hostile work environment” claims as follows:

To establish a claim of hostile work environment, the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment… [I]n order to be actionable … a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so…. [W]hether an environment is sufficiently hostile or abusive [is determined] by looking at all the circumstances….

Given that standard, having someone read the book alone during a lunch break, by itself, is probably not enough to establish a claim.  The fact that it is a book makes a difference. (Contrast that with, say, someone watching “9 1/2 Weeks” on the lunch room television.)  

But, you say, this is ”mommy porn!”  That must make a difference.  Well, let’s not overreact; it’s a book and romance novels (which contain some steamy sections of their own) remain popular.  No one challenges those books in the workplace.  (Well, someone did claim that receiving romance novels as gifts were proof of sexual harassment, but a court rejected that.) 

Reading a book is, by its very nature, a somewhat private and solitary endeavor. 

Now, that view could change a bit, however, if there was a workplace book group discussing the more outrageous plot points in front of others.  In that case, the discussion might naturally revolve around sex which might (emphasis on might) may some feel uncomfortable. 

Again, the test looks at the entire circumstances so an isolated conversation about the book isn’t the real concern.  (Query whether local feelings on the subject might also make a difference too.)  It’s really whether it could be used to show that the workplace environment was permeated with discussions about sex.

But even that might not end the inquiry.  The environment has to be both ”objectively and subjectively offensive, one that a reasonable person would find hostile.”  It’s hard not to think that courts would treat this “mommy porn” differently from classic pornography.   

Yes, the laws on sexual harassment are gender-neutral, as the Supreme Court discussed in the Oncale case nearly 15 years ago.  But harassment cases also have to reflect what is “objectively” offensive. If everyone is reading “mommy porn”, could it be that offensive?

So, go ahead.  Break out the book (or Kindle, or Nook, or iPad).  But its probably still best, if you hear employees discussing the book, to have those conversations kept to a PG-level.