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Employee's Discomfort Not the Same as Sexual Harassment

    Client Alerts
  • February 14, 2014

When is the line crossed between creepy, uncomfortable behavior and sexual harassment? What happens if an employee is particularly sensitive to being touched and interprets such touching as sexual advances? Last month, the First Circuit Court of Appeals concluded that behavior that makes an employee uncomfortable may not rise to the level of actionable sexual harassment.
In Ponte, v. Steelcase, Inc., the plaintiff was a newly hired female salesperson who was undergoing training. She alleged that on two occasions, her supervisor, when driving her back to her hotel, placed his hand on her shoulder, and on one occasion told her that he had done a lot to hire her, and that she owed him. After being terminated for poor sales performance, the plaintiff sued, alleging sexual harassment and retaliation.
The First Circuit had little trouble affirming dismissal of the claim on summary judgment. The court analyzed the harassment claim under Title VII’s “severe and pervasive” standard, concluding that the plaintiff’s allegations were not even close to meeting the law’s requirement for actionable conduct. The alleged incidents only occurred twice, and while inappropriate, they were not as egregious as other by cases in which the harassment threshold had been met.
The First Circuit applied an objective standard, meaning that the plaintiff’s interpretation of her supervisor’s alleged behavior was not enough to make it harassment. Federal courts use a reasonable person standard to determine whether a typical employee exposed to this kind of conduct would interpret it as severe and pervasive. The court noted that when the plaintiff initially mentioned her supervisor’s behavior to HR, even she did not characterize it as harassment.
This decision does not mean that employers should ignore less egregious forms of inappropriate behavior. If left unaddressed, this conduct can eventually reach the harassment threshold through repetition or escalation. However, when defending claims from employees or former employees, the lack of particularly severe conduct or the absence of repetition of lower level behavior over a period of time can prove fatal to the plaintiff’s claims.