Sexual banter not an invitation to harassment: Court

Engaging in sexual banter is not an invitation to sexual harassment, said an appellate court in overturning a lower court ruling that dismissed a sexual harassment complaint brought by a former scientist at the University of Puerto Rico.

According to Monday's ruling by the 1st U.S. Circuit Court of Appeals in Melissa S. Gerald v. University of Puerto Rico; Edmundo Kraiselburd, Mr. Kraiselburd was principal investor and director of the university's San Juan, Puerto Rico-based Caribbean Primate Research Center, while Ms. Gerald was the scientist in charge of a field station it operated.

In 2005, the two had a weeklong sexual affair, but Ms. Gerald subsequently rebuffed his efforts to pursue the relationship. Beginning in 2007, there were three instances of sexual harassment by Mr. Kraiselburd, according to Ms. Gerald, including one in which he grabbed her breast and made “sexually suggestive grunting noises.”

In 2007, Ms. Gerald's duties were changed, including her being relieved of all administrative duties, although she received a promotion. After she complained to the university of the alleged sexual harassment, an investigator concluded her claims were not credible. Among the information included in her report was that their interaction often included off-color remarks and jokes of a sexual nature.

Ms. Gerald resigned from the university in June 2008, and a few months later filed her lawsuit claiming sexual harassment, retaliation and constructive discharge. The federal district court in Hato Rey, Puerto Rico, granted the university summary judgment dismissing all the charges.

But a three-judge panel reinstated her sexual harassment complaint. The university had argued that Ms. Gerald’s behavior of involuntarily engaging in off-color banter with Mr. Kraiselburd “showed that his conduct was not unwelcome. This argument does little to convince,” said the appellate ruling. “We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work,” it said. “There is no evidence that Gerald encouraged or invited Kraiselburd to grab her breasts, and she indicated during the investigation that she was disgusted and bothered by him doing so.”

The appellate court, however upheld dismissal of the retaliation and constructive discharge claims. “Gerald did not articulate what specific, wrongful actions the University took against her after she filed her complaint,” says the ruling. It says that, “viewing all of this evidence, we do not find Gerald's working conditions … so intolerable that a reasonable person in Gerald’s place would feel forced to resign as opposed to stay on the job while seeking redress.”

The case was remanded for further proceedings.