No – the Tenth Circuit Court of Appeals recently affirmed summary judgment against an employee’s sexual harassment claim even though his supervisor required him to wear a speedo and touched his butt.
In McElroy v. American Family Insurance, the plaintiff worked as a sales manager for an insurance company. No. 14-4134 (10th Cir. Oct. 30, 2015). The plaintiff alleged that his supervisor complimented his appearance, clothing, and cologne; touched his back and buttocks, ostensibly to illustrate the location of the supervisor’s back pain; instructed the plaintiff to participate in two body-fat contests during which he required the plaintiff to wear a speedo and tried to touch his buttocks; and repeatedly asked the plaintiff to join him for drinks during a company event. After the plaintiff was fired, he sued for alleged sexual harassment.
Even though the district court acknowledged that some of the supervisor’s actions could make others feel uncomfortable, the district court dismissed the case on summary judgment. The district court reasoned that the plaintiff’s allegations did not establish that the alleged harassment was sufficiently severe and pervasive to give rise to an actionable claim.
The Tenth Circuit Court of Appeals affirmed. The court explained that the district court’s acknowledgment that the supervisor’s actions could make others feel uncomfortable was not enough to satisfy the high standard for hostile work environment claims.
The McElroy case is another illustration of the principle that courts will not find actionable hostile environment claims unless the conduct is truly so severe and pervasive as to poison the work environment. This is a difficult standard for plaintiffs to satisfy. Merely alleging inappropriate behavior in a handful of instances is generally not enough. In various cases, courts have held that there is no liability even if a supervisor: (i) screams, curses, and acts like a jerk towards employees; (ii) tells fat jokes and farts at employees; or (iii) squeezes an employee’s nipple (a single time). An employer can even fire an employee for being too attractive.
Takeaway: The standard for an actionable hostile work environment claim is high, but employers would be wise not to tempt fate. If at all possible, it remains a good idea for employers not to require employees to wear speedos and not to try to touch employees’ rear-ends.