Wise employers know that a single severe act can be enough to satisfy the standard of "severe or pervasive" and be sexual harassment. But how severe does the act have to be?
A recent 6th Circuit ruling gives some assistance. In Ault v. Oberlin College, the Court discussed why a single physical incident was sufficiently severe. The ruling is likewise informative because it also discusses why several infrequent but boorish comments were not sufficiently severe or pervasive.
Single Physical Incident Sufficiently Severe
The Court reversed the lower court's grant of summary judgment to the employer and found that a single physical incident alleged by one of the plaintiffs (even though denied by the employer) was sufficiently severe to warrant a trial on the merits. The incident took place in a remote, walk-in cooler while the employee was placing items on a high shelf. The alleged harasser supposedly pinned her against the shelf, placed his pelvic area against her buttocks, trapping her in that position and remaining there against the employee's protests that he stop, until co-workers happened upon the scene and he walked away. The Court noted that the episode was clearly sexual in nature and included a physical invasion. The incident was physically humiliating and perhaps even physically threatening. Thus, explained the Court, the incident was sufficiently severe – even though it was the only incident alleged by this plaintiff – to warrant a trial. The Court reversed the dismissal in favor of the employer and ordered that a trial be held on this plaintiff's claim.
Several "Infrequent" Verbal Comments Not Sufficient
As noted, the case is also instructive on what did not rise to the level of sufficiently severe or pervasive. Two other female plaintiffs alleged that the same alleged harasser had made approximately five comments to one plaintiff and three comment to the other that were sexually inappropriate and offensive. The Court noted that the language was vulgar and unprofessional but not enough to establish sexual harassment. The incidents were not physical and were not perceived as any threat of physical contact or harm; the comments were relatively infrequent, occurring during the course of three years.
So how does this inform employers in the day-to-day of operations?
- Of course, all conduct – even the vulgar and unprofessional statements – should not be tolerated, even if not legally actionable. The actions are unprofessional, should be taken seriously, and warrant some action on the employer's part.
- For example, the employer should ask – "even if I doubt the story, what if it were true?" As we all know from apocryphal stories we have heard, things are not always as they first appear. Don't pre-judge.&
- Further, the Court noted that after the initial complaint, the employer failed to take some reasonable steps to look into the complaints and even had one manager say to the complaining employees, "Now we don't want a witch hunt here, do we?"
- Here, the three plaintiffs had complained of the vulgar statements months before a full investigation was done. And, of course, the initial complaints of improper conduct came before the unlawful physical conduct by that same supervisor. Had the employer acted more promptly on the vulgar comments, then perhaps the more serious incident would not have occurred.
- The employer indicated, even after the more complete investigation, that the claims could not be substantiated – even the severe physical incident. However, it is not clear that the employer interviewed any co-workers who were alleged witnesses to what happened and who came to the scene as the incident was occurring.
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