Two New Cases Demonstrate High Bar for Proving Sexual Harassment


Not all sex-related behavior in the workplace gives rise to an actionable claim for sexual harassment. In order to violate Title VII, the actions complained of must be unwelcomed, and must create a hostile and offensive working environment based on the victim’s gender. Two new federal appellate cases show how alleged workplace behavior can be obnoxious and unwelcomed, and yet still fail to reach this threshold.

In Richardson v. Bay District Schools, an unpublished decision from the Eleventh Circuit Court of Appeals, the plaintiff was a male maintenance worker who alleged that his male supervisor offered to pay him to have sex with the plaintiff’s wife. The Eleventh Circuit concluded that this claim was not recognizable under Title VII, because the claims of harassment were not based on the plaintiff’s gender. Rather, they resulted from a personal friendship between the plaintiff and his supervisor, and the supervisor’s alleged attraction to the plaintiff’s wife.

In Eisenbaum v. Senior Lifestyle Corp., an unpublished decision from the Sixth Circuit Court of Appeals, the plaintiff alleged that his supervisor made a series of sexually offensive comments to him involving the appearance of his rear end in the company’s uniform. The Sixth Circuit concluded that even if true, the comments were “silly” anatomical references, and did not constitute physically threatening or humiliating conduct. The plaintiff admitted that the comments stopped as soon as he complained about them, and therefore, the conduct did not rise to the level of sufficiently severe and pervasive sexual conduct.

Of course, employers faced with this type of behavior should not ignore it on the basis that it has not yet reached the harassment threshold. Lower level sexual behavior, if continued, can eventually reach the point necessary to constitute a hostile and offensive working environment under Title VII. Employers should conduct regular employee and supervisor training on their harassment policies, including the personal and career impacts of claims made against accused harassers.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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