No – the Eighth Circuit Court of Appeals recently held that a supervisor’s single squeeze of an employee’s nipple was not actionable as sexual harassment under Title VII – even though the supervisor himself characterized the squeeze as “sexual harassment.”
In Rickard v. Swedish Match North America, Inc., there was no dispute that the plaintiff’s supervisor was crude and obnoxious, but that was not enough to give the plaintiff actionable claims under federal law. The plaintiff, a male, alleged that his male supervisor subjected him to increased scrutiny and criticism of his job performance. In addition to a handful of comments related to the plaintiff’s age, the plaintiff alleged that on one occasion, the supervisor squeezed his nipple and stated “this is a form of sexual harassment.” On another occasion, the supervisor took a towel from the plaintiff, rubbed it on his crotch, and then handed it back to the plaintiff. After the plaintiff complained about this conduct, however, the plaintiff never experienced similar conduct from the supervisor. After the plaintiff retired, he asserted claims against the employer for violations of Title VII and the Age Discrimination in Employment Act (ADEA).
The Eighth Circuit affirmed dismissal of all of the plaintiff’s claims on summary judgment. Although the court characterized the supervisor’s conduct as “manifestly inappropriate and obnoxious,” the court held that there was no evidence that the nipple-squeeze and towel incidents were “based on sex” or hostility against men in the workplace. The court noted that the plaintiff admitted the supervisor never pursued him romantically and presented no evidence that the supervisor’s conduct was based on sexual desire. The court also rejected the plaintiff’s argument that the supervisor’s statement that “this is a form of sexual harassment” proved his case, stating that “[t]his court will not take the statement of a layperson . . . as definitive proof that his actions qualified as sexual harassment under the law.”
With respect to the ADEA claim, the court held that the handful of age-based comments alleged by the plaintiff were “simple teasing or offhand comments” and were insufficient to prove an objectively hostile work environment.
Takeaway: The court’s holding in Rickard adds to a long line of cases in which inappropriate workplace behavior did not meet the high threshold necessary for an actionable harassment case (including this case and this case). Nevertheless, it remains advisable for employers not to allow inappropriate behaviors in the workplace.