A federal district court in New York recently held that female employees’ derogatory comments about a female co-worker’s breast size could constitute sexual harassment in violation of Title VII. Durkin v. Verizon New York, Inc. This decision serves as an important reminder to employers that complaints of sexual harassment must be taken seriously regardless of whether the alleged harasser and the victim are members of the same gender, and that merely adopting a harassment policy will not protect an employer from liability if it fails to respond promptly and effectively to harassment complaints.
In this case, a technician at a telecommunications company alleged that after she received a promotion and was transferred to a new facility, several of her new female co-workers subjected her to sexually offensive comments regarding her large breast size on an almost daily basis. The coworkers repeatedly asked her “if those are real” and told her to “take off the miracle bra.” This conduct allegedly escalated over time to include writing derogatory comments about her on a wall, pulling open her shirt to expose her breasts, and coming to work with their own bras stuffed while wearing name tags with the employee’s name written on them. The employee reported this conduct to her supervisor and requested a transfer to another facility. In response, the employer stated that her only option if she wanted a transfer was to accept a demotion to her former position and facility. Although she continued to complain to her employer regarding this conduct, no action was taken, and she eventually took a leave of absence because of the harassment.
The employee subsequently sued the employer in federal court, alleging that her female co-workers’ comments and behavior constituted sexual harassment in violation of Title VII. The employer argued that her claim should not be allowed to proceed since the comments were made by other females and therefore could not constitute harassment “because of sex” that would violate Title VII. The court disagreed, noting that Title VII allows for claims of sexual harassment even where the alleged perpetrators are the same gender as the victim. The court also rejected the employer’s argument that its implementation of harassment policies should shield it from liability for the conduct, noting that the mere existence of such policies will not reduce employer liability unless those policies are coupled with adequate responses to complaints of harassment.