A pair of recent federal appeals court decisions aptly illustrate the importance of an effective harassment policy that prohibits same-sex harassment and a prompt and meaningful response to allegations of such behavior. In Smith v. Rock-Ten Services, Inc., the U.S. Court of Appeals for the Sixth Circuit upheld a jury verdict that the employer failed to conduct a good faith investigation and to respond appropriately to complaints of same-sex harassment the jury found to be sufficiently pervasive and severe to support a harassment claim. In Burgess v. Dollar Tree Stores, Inc., the U.S. Court of Appeals for the Third Circuit found that an employee's claims of a supervisor's vague sexual advance and threat to rip a cross-bearing necklace from the employee's neck did not demonstrate the necessary pervasiveness or severity of conduct to support a harassment claim.

Smith involved three incidents taking place over a course of a few months by a worker toward a co-worker. The first two incidents were separated by about a week, and the third occurred a month or so later. According to the plaintiff's testimony, the incidents escalated from "a slap on the rear, to a painful grab on the rear, to a grab by the hips and 'hunching,' i.e., briefly simulating sex." The employee admonished his co-worker not to engage in such behavior, but his warnings went unheeded by the co-worker. Complaints to the human resources department produced a response deemed inadequate by a jury: the human resources manager did not follow the employer's investigation policies, notably resulting in a single page of barely legible notes rather than the policy-required written report. A jury found the behavior to be sufficiently severe and found the employer to be liable. The jury awarded the employee $307,000, a number reduced to $300,000 by the court to comply with Title VII's statutory damages cap. The Sixth Circuit Court of Appeals refused to disturb the jury's findings or its damages award, finding that the jury could have reasonably believed that the employer's investigation and response were neither prompt nor appropriate in light of what it knew regarding the offending employee's behavior.

In Burgess, the employee claimed that her supervisor threatened to tear a necklace with a cross pendant from her neck if she ever wore it to work again, touched her hair on one occasion, asked if she would ever "go to the other side," and threatened to transfer the employee so that she did not become like another female employee the supervisor allegedly did not like. Considering this conduct, the Court of Appeals for the Third Circuit affirmed the lower court's dismissal of the employee's claims. Noting that Title VII is not intended as a general civility code and that conduct must be extreme to constitute the kind of change in terms and conditions of employment that Title VII was intended to target as harassment, the court found that none of the facts alleged reflected either the requisite frequency or severity of conduct needed to support a claim.

Although the courts reached different conclusions in the two cases, the two cases do stand together in highlighting the importance of a harassment policy that includes same-sex harassment. Similarly, both cases affirm the generally accepted notion that harassment must be sufficiently pervasive and severe to support a claim that is actionable. Smith, in addition, highlights two additional but important points. First, conduct that is not necessarily pervasive may nevertheless be actionable if it is sufficiently severe. Whether harassment rises to this level is a question of fact for a jury, and, as Smith highlights, absent evidence that the jury's conclusion is legally unsustainable, an appeals court will be reluctant to overturn it. Second, Smith highlights the importance of an effective and prompt response intended to terminate and prevent further recurrences of the objectionable behavior. The Court in Smith emphasized that the employer failed to follow its own policy, suggesting that the jury was justified in considering that the employer, which characterized the behavior as mere horseplay, essentially trivialized the behavior and did not respond effectively.