A Federal Judge Rules that a Single Occurrence of ‘Butt-Smacking’ Can Be Enough to Substantiate a Hostile Work Environment Claim

For some, the hostile work environment you experience at your job is a seemingly daily grind. The harassment keeps happening over and over… and over. For others, their harassment is something different. It happened only one time but that one time was something incredibly egregious like an uninvited sexual grabbing, squeezing, slapping, groping… or worse. Be aware that, even if that is the only instance of harassment you endured, you can still sue and win. Even a single incident can be enough if it was sufficiently severe. To find out if you have a case, talk to an experienced New York City sexual harassment lawyer.

D.B. was one of those people in the “not pervasive but severe” category of hostile work environments.

She was a senior director of global market access and had worked for her employer (plus its predecessor) for 16 years. Then, in September 2017, while attending a work conference in Canada, she encountered her company’s president and CEO of global specialty medicines at a cocktail reception. Seeking to introduce her subordinate to the CEO, the director approached the man. They spoke for a few minutes then, as D.B. turned to walk away, the CEO slapped her on the rear.

Obviously, any uninvited contact with one’s private areas is never OK, but this was a slap of some force. It was audible and it was done in full view of the director’s subordinate employee.

The director sued, alleging the existence of a hostile work environment. The employer contested, arguing that the director had only one, isolated slap to support her case and that the slap could not be viewed as sufficiently severe to constitute a hostile work environment by itself.

The trial court disagreed and rejected the employer’s request for a summary judgment in its favor. In ruling for the employee, the court made one point extremely clear when it comes to deciding a hostile work environment case predicated upon a single allegedly severe instance of harassment. That point was: context matters.

The Importance of Context

The U.S. Supreme Court, in a 1998 opinion, noted that a football coach’s slapping the rear of a player taking the field generally would not be severe harassment but an identical slap very well could be if that same coach delivered it to his “secretary… back at the office.” According to the court, common sense and “an appropriate sensitivity to social context” were the keys to differentiating playfulness or “roughhousing” from abuse or harassment.

For example, in 2013, a female officer with the Atlantic City Police lost her case based on non-pervasive harassment. In that lawsuit, at least one of the incidents involved a higher-ranking male officer who, along with his family, frequently dined and vacationed with the plaintiff and her family. Those facts made it more likely that an unexpected touching would be mere playfulness (albeit potentially ill-conceived playfulness) rather than harassment.

On the other hand, a woman working for an IT company in Branchburg won her case, in part, precisely because the context was different. Although the number of incidents of unwanted physical touching was few, they were perpetrated by the man who was the president, CEO, and founder of the company and who was not a friend, much less a close friend, of the plaintiff. This context weighed in favor of finding that the contact was severe harassment.

D.B.’s case, although adjudicated by a federal court in Pennsylvania, was resolved based upon the same Third Circuit Court of Appeals precedents as those that guide federal cases in New Jersey. Those rulings, according to the judge, dictated that the employer was not entitled to a summary judgment. Even though the incident was isolated, it was perpetrated by a man that the director barely knew and involved a substantial impact with an “intimate area” of the woman’s body, “without any indication whatsoever that any such conduct was invited.” That, according to the court, was something that a jury could find was severe and, therefore, enough to constitute a hostile work environment.

There are lots of talks these days about “misinformation” in politics. There can also be a lot of misinformation when it comes to the law, especially if you’re someone who was been the victim of workplace sexual harassment. If someone has told you it’s impossible to win if your case is based on only one incident, they’re not giving you good information. Get answers and advice you can rely on from the knowledgeable New Jersey sexual harassment at Phillips & Associates. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation and find out how we can assist you.

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