Employers’ sexual harassment training efforts usually emphasize the importance of avoiding non-verbal behavior that could be deemed hostile and/or offensive. This can include gestures, or in many cases, staring. Female employees commonly complain about male employees leering at them, or otherwise making them feel uncomfortable in the workplace due to staring at their body parts.
A new decision from the First Circuit Court of Appeals, Billings v. Town of Grafton, asks the question whether such non-verbal behavior alone can rise to the level of a hostile and offensive working environment under Title VII. The suit was filed by a secretary for a Massachusetts municipality who claimed that over a three-year period of time, the Town Administrator would continuously stare at her chest when speaking with her. The Administrator had been the subject of similar complaints from other female employees. In response to internal complaints, the plaintiff said that the staring incidents diminished, although they still occasionally occurred. She later sued alleging sexual harassment and retaliation.
In addressing the harassment portion of her complaint, the First Circuit reversed the district court’s holding that as a matter of law, the Town Administrator’s staring did not create a hostile or offensive working environment under Title VII. Even though staring was never accompanied by any verbal conduct, advances, or other harassing behavior, it caused the plaintiff a great deal of distress, and changed the way that she dressed and interacted with her supervisor. In addition to being unprofessional and uncivil, this repeated and longstanding behavior could have created a hostile and offensive working environment. The court remanded the case for a jury trial on the plaintiff’s harassment complaint.
This case serves as a clear lesson that non-verbal behavior that involves no sexual propositioning can still violate Title VII and subject the employer to compensatory and punitive damages for sexual harassment. Employers must promptly and appropriately deal with complaints of staring or ogling. Employees who cannot refrain from such behavior should be considered intolerable risks for continuing employment.