Sexual harassment cases are fact- and context-specific. There is no “bright line rule” as to when a comment or a touch “cross the line” from non-actionable to actionable. Such claims can be based on comments, physical touching, or some combination of the two.
A recent decision, Batten v. Global Contact Services, LLC, 15-cv-2382, 2018 WL 3093968 (E.D.N.Y. June 22, 2018), is instructive as to when and under what circumstances touching – here, a “hug” – gives rise to an actionable sexual harassment claim.
The facts, as summarized by the court:
On the morning of November 18, 2014, Batten was seated at her cubicle, on the phone with a customer via headset. After passing in front of Batten’s desk, Keyes circled around the short cubicle wall surrounding it and entered her cubicle from behind her. He then hugged Batten from behind while she remained seated in her chair. Batten “never saw him coming [and] only just felt something.” (Batten Dep. at 126:13-17.) She felt “someone touch [her] on [her] back, like a press and slow motion of … a squeeze and a hug.” (Id. at 127:2-5.) Defendant Keyes locked his arms around Batten’s body “underneath [her] breast and lifted [her] and squeezed.” (Id. at 151:19-20.) The hug lasted for more than ten seconds, during which Keyes’ cheek pressed against hers, his chin over her shoulder. (Id. at 152:2–7; 244:12–17.) Keyes’ forearms made contact with Batten’s breasts, but he did not grab her breasts with his hands. (Id. at 244:9–11.) In response to Keyes’ hug, plaintiff turned around and stood up. Another GCS employee witnessed the hug and shouted, “David, I saw you.” (Id. at 129:17.) Keyes responded that the hug was “just to say hi,” and then walked away. (Id. at 126:21–129:22.)
Plaintiff based her hostile work environment claim on this one incident.
The law:
Title VII provides that “[i]t shall be unlawful … for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has interpreted this language as providing a claim for sexual harassment that constitutes a “hostile work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). To prevail against an employer on a hostile work environment claim, a Plaintiff must establish two elements. First, she must prove that a rational juror could conclude that the harassment was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted); Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d Cir. 1994). Second, she must establish that a specific basis exists for imputing the objectionable conduct to her employer. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). The Second Circuit has held that in the context of a hostile work environment discrimination claim, summary judgment is appropriate only if it can “be concluded as a matter of law that no rational juror could view [the defendant’s conduct] as … an intolerable alteration of [the plaintiff’s] working conditions.
The court then proceeded to evaluate both elements of plaintiff’s hostile work environment claim under Title VII.
Element One: Severe or Pervasive
The court explained why and how element one was satisfied, noting that while the conduct was not “pervasive” it was arguably “severe”:
This single incident transpired in a matter of seconds and is therefore not “continuous and concerted” enough to “be deemed pervasive.” Faragher, 524 U.S. at 788; Alfano, 294 F.3d at 374; Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015). Thus, to establish objective hostility, Plaintiff must establish that the incident was independently severe enough to “alter the terms and conditions of [her] employment.” Redd, 678 F.3d at 175 (citing Meritor, 477 U.S. at 67).
The line between actionable harassment that discriminatorily changes a plaintiff’s conditions of employment and merely mild incidents unsupportive of a viable claim is “not indistinct.” Redd, 678 F.3d at 177.
On one side lie complaints of sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; and obscene language or gestures … On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.
Id. (quoting Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir. 1998) ) (internal quotations and brackets omitted).The Second Circuit has explained that casual contact of the kind exchanged among friends, such as a “hand on the shoulder, a brief hug, or a peck on the cheek,” normally will not create a hostile environment “in the absence of aggravating circumstances such as continued contact after an objection.” Id. (quoting Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006) ). Indeed, “even more intimate or more crude physical acts—a hand on the thigh, a kiss on the lips, a pinch of the buttocks—may be considered insufficiently abusive to be described as ‘severe’ when they occur in isolation.” Id. However, once physical contact exceeds expectations of “friendly coworkers … it becomes increasingly difficult to write the conduct off as pedestrian annoyance.” Id. In every instance, of course, actions must be judged under the totality of circumstances in order to determine whether they were so severe that they objectively altered a plaintiff’s terms and conditions of employment.
*5 Defendants argue that Keyes’ hug was nothing more than “casual contact that might be expected among friends.” Redd, 678 F.3d at 177 (quoting Patton, 455 F.3d at 816). I disagree with defendants’ characterization of the incident, as plaintiff described it. Keyes’ arms went underneath plaintiff’s breasts and he lifted and squeezed her for more than ten seconds while his cheek was pressed against hers. This is not casual contact that might be expected among friendly coworkers—this is intimate contact. Plaintiff was, in essence, held in place while her supervisor pressed his cheek to hers and squeezed her body. Plaintiff was at her desk working at the time and the contact occurred without warning or any arguable consent on plaintiff’s part. Plaintiff characterizes Keyes’ action as a “sexually forceful grope” that “sexually violat[ed]” and “physically threaten[ed]” her. A reasonable juror could find that this conduct was both physically threatening and humiliating, and therefore that it meets the objective standard for hostile work environment claims.
Element Two: Imputing to Employer
The court also held that this conduct could be imputed to defendant, notwithstanding defendant’s invocation of the so-called “Faragher/Ellerth” defense.
That defense “allows an employer to avoid liability for an employee’s actions if it can show (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
The court explained why defendant was not entitled to rely on this defense:
GCS argues that, upon receiving Batten’s complaint against Keyes, it promptly informed Keyes to avoid contact with Batten, investigated the claims by speaking to both Batten and Keyes, removed Batten from Keyes’s supervision, and “had Keyes apologize to Batten.” (Defs.’ Mem. at 11–12.) The evidence before me, however, reveals that these assertions are not the version of the facts most favorable to plaintiff. As discussed above, Keyes is still listed as plaintiff’s supervisor on her termination paperwork, and there is testimony to the effect that he could still cause her to be disciplined. Moreover, the extent and purpose of the “investigation” is in dispute. Plaintiff contends that Merritt attempted to downplay the seriousness of the complaint in her meeting with Batten, saying “that’s what we do, we’re Spanish. We hug” and that incidents like this one happen in the world. (Batten Dep. 172:18-173:17.) Coupled with the fact that Keyes was not disciplined despite admitting to assaulting Batten, a jury could conclude that GCS did not exercise reasonable care to prevent and correct sexually harassing behavior. Defendants’ motion for summary judgment on plaintiff’s Title VII hostile work environment claim is therefore denied.