10/05/2012 - Myclipp

Business Insurance/ - Article, Dom, 13 de Maio de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Hostile work environment parameters
clarified by court
NEW YORK—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 ruled.
According to the unanimous May 4 ruling by a
three-judge panel in Fedie R. Redd vs. New York State
Division of Parole, Ms. Redd, who was a parole officer
in Queens, N.Y., 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.
“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 in saying Ms. Redd interpreted the
contact as homosexual advances.
“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.
While the supervisor denied she sexually harassed or
touched Ms. Redd in an inappropriate way, “the jury
would not be required to believe those denials; hence
the district court, in determining whether the division
was entitled to judgment as matter of law, was
required to disregard them,” the appeals court ruled.
The district court also failed to view the record in the
light most favorable to Ms. Redd “or credit inferences
that were permissible from her descriptions of the
events she physically experienced,” the appeals court
said. “The repeated touching of intimate parts of an
unconsenting employee"s body is by its nature
severely intrusive and cannot properly be
characterized as abuse that is "minor,"” the court said.
“This is not the manner in which women routinely
interact” and such conduct is not normal for the
workplace, the appeals court ruled in citing the U.S.
Supreme Court"s 1998 ruling in Joseph Oncale vs.
Sundowner Offshore Services Inc., in which the
nation"s high court ruled that same-sex workplace
harassment is prohibited.
“Nor, with the record viewed as a whole and in the light
most favorable to Redd, could Washington"s physical
contacts properly be characterized as "incidental."” In
each instance, a jury could find Ms. Washington “had
contrived to be in close proximity to Redd,” the court
said.
The court said it also disagreed with the district court"s
conclusion that the alleged incidents were episodic,
rather than continuous or concerted.
“The evidence that Washington repeatedly touched
Redd"s breasts; that Washington never apologized or
indicated in any other way that her touching were
accidental; that Washington repeatedly requested that
Redd come into her office even though she was not
Redd"s immediate supervisor; and that Redd,
apprehensive of further repetition, consequently felt
the need to avoid Washington, would all allow a
rational juror to find that Washington"s conduct was
not only severe but pervasive,” the appeals court ruled
in remanding the case for further proceedings.
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, Mr. Mollica said.
“It"s sensitive enough to any reasonable person that if
an employee complains about it, the employer really
needs to shift into high gear to prevent it, correct it and
investigate it,” he said.
Ms. 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.
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