According to a recent 2nd Circuit Court of Appeals decision, what one woman considers an innocent brush may be construed by the other woman as intentional same-sex harassment—and juries are best equipped to sort out who is right.
For employers, it’s a sign: It always pays to take a close look at same-sex harassment allegations. Never dismiss them as unfounded just because the alleged victim and harasser happen to belong to the same sex. That’s true even if it isn’t obvious that the alleged harasser is gay.
Recent case: Ferdie worked in the Queens Parole Division. She claimed that three times, her new female supervisor, Sarah, sexually harassed her by touching or grabbing her breasts. The first time, Sarah allegedly approached Ferdie as she was preparing paperwork and brushed up against her. That startled Ferdie, who spilled water all over the papers.
The second time, Sarah allegedly walked up to Ferdie in a hallway and touched her breasts, rubbing them. Finally, Sarah allegedly walked up on Ferdie as she was sitting at her computer “and rubbed up against my breasts again.”
Ferdie sued, alleging that her supervisor’s harassment created a hostile work environment.
The Parole Division argued that there was no evidence that the contacts were anything but accidental or that the supervisor was gay. The trial court dismissed the case, but Ferdie appealed.
The 2nd Circuit Court of Appeals reinstated her lawsuit. It said a jury should decide whether sexual desire motivated the supervisor or whether the touching was accidental. (Redd v. New York State Division of Parole, No. 10-1410, 2nd Cir., 2012)
Final note: Take all harassment complaints seriously. Impress on supervisors that personal contact of any sort isn’t appropriate.