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Court: Three Unwanted Touches in Five Months Constitute Sex Harassment

One attorney familiar with the case says the case illustrates that employers need to conduct an investigation 'in any situation that involves intimate touching.'

May 8, 2012
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A plaintiff can pursue a hostile work environment claim on the basis of three alleged instances of unwanted intimate contact over a five-month period, the 2nd U.S. Circuit Court of Appeals has ruled.

According to the May 4 unanimous ruling by a three-judge panel in Fedie R. Redd vs. New York State Division of Parole, Redd, who was a parole officer in Queens, New York, said she was touched on her breast three times over a five-month period in 2005 by her female supervisor, Sarah Washington.

A lower court dismissed her complaint of a hostile work environment due to sexual harassment, stating that the alleged acts were "relatively minor, incidental physical contact" and that a jury would not find the parole department supervisor's conduct to "be so severe or pervasive as to be objectively hostile or abusive."

However, the appeals court panel disagreed and overturned the lower court's ruling.

"Taking the evidence in the light most favorable to Redd and accepting her version of the events as true, as we are required to do and a jury would be permitted to do, we have several difficulties with the district court's conclusion that no rational juror could find that Washington had sexually abused Redd because of her sex and that the abuse was not sufficiently severe to create a hostile work environment in violation of Title VII," the panel ruled.'

The plaintiff interpreted the touching as homosexual advances, the court said. "We see no principled reason why a jury, considering the evidence of repeated touching of such gender-specific body parts, would not be permitted to draw the same inference," the court said.

In rejecting assertions that the physical contact was minor or incidental, a jury could find Washington "had contrived to be in close proximity to Redd," the court ruled in remanding the case for further proceedings.

Commenting on the ruling, plaintiff attorney Paul W. Mollica, of counsel with law firm Outten & Golden L.L.P. in Chicago, said the case illustrates that employers need to conduct an investigation "in any situation that involves intimate touching."

"The court's reminding us that while there may be some kinds of harassing behavior that's not severe," such as an occasional comment, touching a man or a woman's intimate parts "would be essentially severe enough to constitute harassment all by itself" and does not need to be accompanied by comments or a proposition, Mollica said.

Redd's attorney, Maia Goodell, a partner with Vladeck, Waldman, Elias & Engelhard P.C. in New York, said she was pleased with the decision.

A spokesman for the New York Solicitor General's office, which represented the parole department, could not be reached for comment.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

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