Friday, February 6, 2015

Federal Court Does Not Find a Hostile Work Environment Created by JibJab Video

February 2015
By: Nancy E. Joerg, Esq.

Employment law makes a valiant effort to keep abreast with endless computer innovation and evolving social media. is one such challenge!

The subject of this article is a popular website called “”. allows you to make talking bobble-head creations of your own by uploading photos of yourself, friends, family et al. You are taken through a step-by-step photo cropping process to digitally impose your face (or someone else’s!) onto the face of a bobble head character, and then you can watch humorous JibJab videos set to music with the digitally imposed faces. But some people do not find all  JibJab videos humorous!!

In January 2015, a Federal Judge for the Northern District of Illinois granted the employer’s motion for summary judgment in a lawsuit brought against it by an employee (Killis) for “sexual harassment and violation of the store’s policies.” [Tammi Killis v. Cabela’s Retail II Inc., No. 13 C 6532 – “Killis case”] JibJab took a unique leading role in this case!

The Killis case has to do with whether digitally imposing an employee’s head onto the body of a person doing a JibJab workout video creates a sexually suggestive and hostile work environment (for the employee whose head was stuck onto the body).

While some would find it amusing to have their head stuck onto the body of someone else, others clearly might find it offensive, especially if it was without their permission (as was the case here)!

In the Killis case, the employee was so offended by her head being digitally imposed on someone doing an energetic workout video to the song “Physical” (in a video which used that the employee filed a sexual harassment lawsuit against her employer.

Many readers will recall that Olivia Newton-John recorded the hit song “Physical” in 1981. Killis claimed that Killis was made to appear to be working out in a “sexually suggestive manner” during the 90-second video.

Ironically, the JibJab video featuring Killis was part of a “Fun Friday Event” at the store and was intended to boost employee morale in the workplace.

The JibJab video supposedly upset Killis enough that she claimed resulting headache, nausea, vomiting, and anxiety. She said she obtained psychiatric care and therapy because of the hostile and offensive work environment allegedly caused by the JibJab video.

Killis hoped that the combination of the JibJab video and the series of offensive, teasing comments that co-workers made to Killis about the video would together be considered a hostile work environment violating civil rights laws. However, the Federal Judge simply did not buy it.

The Federal Judge who decided the Killis case did not find the kind of systemic discriminatory behavior which successful hostile work environment claims require.

The Federal Judge noted in her detailed Decision that there is a line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other. The Judge found that the JibJab video featuring Killis and comments related to the video made by co-workers were not sufficiently offensive to constitute actionable conduct. The Judge said, “The comments were immature and ill-advised but not sexually explicit or graphic.”

The Judge summed up by noting, “The video was a misguided, inappropriate and isolated attempt to celebrate the 2012 holiday season by playing a hit song from the 1980s that has risqué lyrics coupled with the JibJab video.” The Judge then granted summary judgment in favor of the defendant employer.

For assistance with harassment or discrimination issues of all types, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at