Under Title VII, employees are expected to put up with a significant amount of unwelcomed behavior in the workplace. Such behavior does not legally become sexual harassment unless if crosses the "hostile and offensive" line. Federal courts continue to struggle on where to draw this line. Earlier this month, the First Circuit Court of Appeals determined that a supervisor's allegedly intentional encroachment on a subordinate's personal space was severe and pervasive enough to constitute sexual harassment.

In Vera v. McHugh, the plaintiff was a U.S. Army soldier who shared a small office with her male supervisor. She alleged that for a period of three months, her supervisor stared at her, sat very close to her, made it difficult for her to leave the office and called her "babe" on one occasion. She claimed that her supervisor enjoyed her discomfort, and would smirk at her reaction to his behavior.

The First Circuit reversed a grant of summary judgment for the Army, remanding the matter for jury trial. The court stated that the plaintiff alleged sufficiently severe and pervasive conduct to constitute a violation of Title VII if proven. One judge on the panel objected, noting that this decision went well beyond the type of severe conduct generally recognized as required to sustain a sexual harassment claim. He noted that incidental contact in a crowded workplace was inevitable, and that the court's reasoning would open the door to harassment claims by any person who shared a small office with someone they dislike.

Federal courts take different positions with regard to the level of severity necessary to constitute sexual harassment under Title VII. Employers should strictly enforce harassment policies, even when the alleged conduct does not appear on its face to be severe or hostile enough to create immediate legal issues.