Did Boss's Shoulder Touching and Suggestive Comment Constitute Sexual Harassment?

A female sales manager for an office furniture company alleged that on two separate occasions, her male supervisor acted inappropriately while driving her back to her hotel after company-sponsored training sessions. In the first instance, the pair had been at dinner with a group of co-workers when the supervisor insisted on driving the female employee back to the hotel. During this drive, the supervisor reached his arm around the female employee who was sitting in the passenger seat, and he put his hand on her right shoulder where he left it for about a minute. During the ride, the supervisor is alleged to have said that he had done a lot to get the female employee the job, and that she owed him to do “the right thing by him.” A few nights later after a similar post-training group dinner, the supervisor again insisted on driving the female employee back to the hotel. He again extended his arm to put his hand on her right shoulder, leaving it there for most of the fifteen- to twenty-minute drive back to the hotel.

The female employee was eventually fired for poor performance in a decision made by the male supervisor, and she then sued the company for sexual harassment. But her claim for sexual harassment was dismissed. A Massachusetts federal appeals court acknowledged that it would be “uncomfortable” for a female employee to have her male supervisor’s unwelcome arm around her while commenting that she owed him for hiring her. But the court noted that the two incidents ended quickly, and for the next ten months of employment there was no allegation of further inappropriate conduct by the supervisor. Citing the well-established legal standard for hostile work environment claims, the court concluded that the supervisor’s objectionable conduct was not pervasive by any measure, and that compared to other sexual harassment cases that had come before that court, this case was not even close.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com. 

Shoving or discrimination?

A male supervisor who was offended at a comment made by a female employee during a meeting, shoved the female employee on her arm.  The female employee sought treatment for the alleged pain from the altercation, and she also claimed to have suffered headaches, nightmares, and high blood pressure as a result of the incident.  The female employee eventually sued the company, claiming that her experience there constituted both harassment and a hostile work environment.  The company disputed her claim as legally flawed, and asked the court to dismiss her lawsuit without a trial.

Who won?
The company won.  A federal judge in Alexandria dismissed the case a few weeks ago after finding that there was no evidence that the shoving incident was motivated by the male supervisor’s hostility toward women.   This case is a good example of how federal discrimination laws are often wrongly invoked to remedy workplace situations that, while being inappropriate, do not rise to the level of actionable discrimination.  The terms “harassment” and “hostile work environment” have specific legal meaning in the context of federal discrimination laws, and only harassment or hostility that is motivated by a bias against one of the protected classifications (gender, race, age, disability, religion, etc.) can support a discrimination claim.  Here, the evidence showed that the supervisor was mad at a comment made by the female employee in a meeting, but that her gender had nothing to do with the supervisor’s angry act toward her.

The female employee in this case was not without recourse for the shoving incident.  She could have filed an assault and battery lawsuit against the supervisor, and probably also brought the company into the case under the theory of respondeat superior.  But by raising her grievance in the context of a federal discrimination lawsuit, the employee learned the hard way that these laws are not intended to address all problems in the workplace.