The short answer, YES!
On June 22, 2018, the United States District Court, Eastern District of New York, handed down a decision in the case of Batten v. Global Contact Services, LLC, where it ruled that a hug from a supervisor could be actionable conduct under Title VII, the New York State Human Rights Law and the New York City Human Rights Law. The recent decision highlights an important fact for victims and lawyers to consider: any form of un-welcome physical contact is inappropriate, even social staples like hugs and friendly pecks on the cheek.
The case arose from a Plaintiff who claimed her supervisor entered her cubicle, grabbed her from behind, hugged and squeezed her, and pressed his cheek to her cheek for more than ten seconds. Plaintiff brought a claim under Title VII, and applicable State and City law, claiming sexual harassment, and hostile work environment based on the unwanted touching of her supervisor. Plaintiff stated that when he hugged her, he squeezed her body underneath her breasts. He did not grab her breasts, but his forearms made contact with her breasts.
The U.S District Court, Eastern District of New York applied the hostile work environment standard to evaluate the validity of Plaintiff’s claims. In doing so, the Court noted that in order for the Plaintiff to prevail in her hostile work environment claim, she must prove two things: first, that the harassment was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Secondly, she must establish that there is a specific basis for imputing the objectionable conduct onto her employer. In applying the hostile work environment standard to Plaintiff’s claims, the Court noted “the single incident transpired in a matter of seconds and is therefore not continuous or concerted enough to be deemed pervasive. Thus, Plaintiff was left to prove that the incident was independently severe enough to alter the conditions of [her] employment.” Although Defendants, in this case, argued that the Supervisor’s action was nothing more than casual contact among friends, the Court disagreed, stating that the supervisor went underneath Plaintiff’s breasts, lifted, and squeezed her. This, as the Court reasoned, is not casual contact but can be considered intimate contact. Plaintiff argued that the conduct was sexually forceful groping, and sexually violated her. Ultimately, the Court found that a reasonable juror could find that this conduct was unwelcome, sexually forceful, and humiliating, and the claim rises to the severity standard for hostile work environment claims.
In evaluating the second prong, imputing liability onto the employer, the Court held that the conduct could be imputed to the employer despite the Defendant’s attempt to invoke the Faragher/ Ellerth (“FE”) defense. The FE 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 fails to avail themselves to the advantage of any preventative opportunities provided by the employer. The court found that the Defendant was unable to rely on this defense because the plaintiff complained about the harassment, and the supervisor was instructed to avoid contact with Plaintiff. Despite conducting an investigation into Plaintiff’s claims of harassment, the supervisor was never disciplined or removed from being Plaintiff’s direct supervisor. Based on this reasoning, the court noted that a jury could conclude that the defendant did not exercise any reasonable care to prevent or correct the sexually harassing behavior.
Any unwelcome conduct or comments are inappropriate, and sexual harassment cases are fact and context specific. There is no “bright line” that separates actionable from non- actionable comments or conduct. At Derek Smith Law Group, PLLC, our experienced attorneys provide aggressive representation to people who have been sexually harassed. If you have been sexually harassed or assaulted, or if you believe that your employer engaged in unlawful employment practices, consult with an experienced Derek Smith Law Group, PLLC attorney. Our attorneys have years of experience litigating claims of discrimination, sexual harassment, and employee’s rights in the workplace. With offices in New York City, Philadelphia, and Miami, we have recovered millions on behalf of our clients who were subject to unlawful employment practices. Let us stand up for you and your rights when it counts. If you need an attorney in New York, New Jersey, Pennsylvania, or Florida, please give our attorneys a call, toll-free at (800) 807-2209, for your free consultation.
This blog post is for general informational purposes only. It does not constitute legal or other professional advice. Additionally, this post is not a substitute for the advice of an attorney licensed in your state.