posted on Friday, July 21, 2006 8:58 AM
by
Lou Michels
Enough Is Too Much
An inevitable question that arises when I conduct sexual harassment training is: How bad does the conduct have to be before it actually becomes sexual harassment? Sexual harassment cases use a murky standard originally outlined in the Meritor case in 1986-- the conduct must be severe or pervasive enough to alter the conditions of employment and create an abusive working environment. In other words, infrequent conduct has to be quite severe; less severe conduct must occur with some frequency, in order to create a hostile or abusive environment. Things like teasing, offhand or infrequent comments or isolated incidents that are not severe typically don't create a hostile work environment for purposes of Title VII.
But occasionally they do. The 5th Circuit recently considered a case in which the plaintiff, a private security guard, alleged that her supervisor repeatedly touched her, including at least one instance on her breast and then on her thigh. Ultimately, she resigned over the company's alleged refusal to act on her complaints.
Although the district court found that her allegations were not severe or pervasive enough to support a hostile work environment claim, the 5th Circuit reversed. Noting that the plaintiff alleged intimate contact by her supervisor, the 5th Circuit determined that the touches at least raised a triable issue with regard to whether the conduct was sufficient to create a hostile work environment. Accordingly, it sent the case back to the district court to reconsider its grant of summary judgment in light of the 5th Circuit's ruling.
The court's opinion notes that this is a close case, but draws a fairly bright-line between pats on the back or on the arm and touching in other areas described by Monty Python as "naughty bits." That's a sufficiently clear distinction for most people, I hope.