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Repeated Touching Enough to Justify Same-Sex Harassment Verdict

    Client Alerts
  • February 23, 2016

Plaintiffs seeking compensation for sexual harassment must demonstrate that they were subjected to a hostile and offensive working environment. Plaintiffs in same-sex harassment claims have the additional burden of proving that the unwanted attention resulted from sexual desire or hostility to the presence of members of that gender in the workplace. When the alleged harasser is a co-worker instead of a supervisor, the employee must also show that the employer failed to appropriately respond once it became aware of the conduct. Earlier this month, the Sixth Circuit Court of Appeals concluded that a plaintiff met his burden of proof on all of these issues.

In Smith v. Rock-Tenn Servs., Inc., the plaintiff complained that on three occasions over a six-month period, a male co-worker either pinched his buttocks  or grinded his pelvis into the plaintiff. Despite the fact that the defendant terminated the co-worker, the plaintiff sued and obtained a $300,000 sexual harassment verdict. On appeal, the company claimed that the plaintiff had not met his burden of proving liability under Title VII.

The Sixth Circuit rejected each of these arguments in turn. First, the court concluded that the three incidents were sufficient to create a hostile and offensive working environment. Physical contact requires fewer occasions than verbal acts to reach the hostile and offensive threshold. Next, the court concluded that the harasser’s conduct was motivated by attraction to members of his same sex. Despite the presence of women in the workplace, he only directed this behavior towards other men.

Finally, the Sixth Circuit said that the employer’s response to the harassment complaint was not reasonable. The harasser had been previously accused by male co-workers of similar conduct, but the employer failed to suspend him during the last investigation, allowing him to continue to work alongside the plaintiff. Due to a manager’s vacation, the employer delayed the investigation by 10 days, making it untimely.

Despite the prior allegations, the employer in this case allowed the harasser to continue his employment, making it a virtual insurer of his behavior going forward. Some employers dismiss same-sex harassment, considering it horseplay instead of a serious violation of the company’s anti-harassment policy. This casual attitude toward the conduct and the resulting investigation can result in large and embarrassing jury verdicts.