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Hostile work environment parameters clarified by court

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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.

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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.

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“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.