Not all sexually-oriented behavior in the workplace constitutes sexual harassment. In order to have an actionable claim under Title VII, the conduct must be severe and pervasive enough to create a hostile and offensive working environment. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that in some circumstances, purely verbal harassment engaged in occasionally over a long period of time is enough to create a hostile working environment.

In EEOC v. Fairbrook Medical Clinic, the plaintiff was a female physician who was supervised by a male doctor who was the sole owner of the practice. She alleged that over a three-year period, he would make crude and sexually oriented comments and questions directed toward her and other persons in the office several times a month. These alleged actions involved observations about the size of the plaintiff's breasts during and after pregnancy, her personal sexual habits and that he discussed his own sexual activities with his wife.

The district court concluded that this alleged conduct was insufficient to constitute a hostile and offensive working environment under Title VII. The Clinic contended that the comments were occasional, were made over a protracted period of time and therefore were not pervasive in nature. There was no touching or other non-verbal conduct alleged, and the plaintiff admitted that she would occasionally tell an off-color joke herself. The defendant also contended that the Clinic was out of necessity a more casual work environment when it came to matters of anatomy and sexual issues due to the nature of a medical practice.

The Fourth Circuit rejected these defenses, reversing the dismissal of the claim and remanding the case for trial. The court stated that even if the alleged behavior was sporadic, much of it was directly aimed at the plaintiff, and was of a highly personal and humiliating nature. As the senior physician and sole owner of the business, the male doctor's alleged conduct was more offensive due to his position of power within the practice.

This decision proves that given the right context, even occasional jokes or comments can rise to the level of sexual harassment under Title VII. Employers need to take swift and appropriate action to investigate and put an end to sexual teasing, joking and unwanted inquiries into co-workers' sex lives before the matters escalate to the point where the employer becomes liable for damages caused by such conduct.