When is a slap on the buttocks of a female subordinate by a male supervisor not sexual harassment?
That was one of the questions answered by the court in granting summary judgment in favor of the employer in the recent case of Sandra Williams v. Ocean Beach Club, LLC, Civil No. 2:11cv639, United States District Court for the Eastern District of Virginia, Norfolk Division, (Sept. 25, 2012).
To answer the question: A buttocks slap fails to rise to the level of sexual harassment when no reasonable person could conclude under the circumstances that the conduct was made unlawful by Title VII. In the Williams case, those circumstances included the following:
- The slap occurred apparently in celebration of the subordinate closing a difficult sale;
- The female subordinate never had any previous difficulties with the supervisor;
- The male supervisor had never spoken to her or touched her inappropriately before;
- The male supervisor had never been witnessed behaving inappropriately towards others;
- The female subordinate did not believe the supervisor was trying to harm her (although the slap left a hand print); and,
- The female subordinate did not believe the slap was sexual in nature.
The Williams decision clearly does not give supervisors a free pass to go around slapping the buttocks of subordinates (female or male). Buttock slapping is inappropriate and the employer was fortunate that the combination of factors weighed decisively against sexual harassment. If any of the facts turned the other direction (i.e. the supervisor had previously been inappropriate or the subordinate believed the slap was sexual in nature), the court would likely have denied summary judgment.
Although the buttock slapping grabs your attention, it is not the important part of the opinion. The discussion of the employer’s investigation after the complaint about the slap provides excellent guidance for all employers on how to properly document the results of an investigation.
Williams claimed that the employer retaliated against her for opposing conduct made unlawful by Title VII. According to Williams, she engaged in protected activity when she made an internal complaint about the slap. As discussed above, the isolated buttock slap was not unlawful under Title VII. Nevertheless, a retaliation claim can stand if the employee held an objectively reasonable belief that the complained of behavior was unlawful.
Williams argued that the employer was estopped from arguing her belief was not objectively reasonable because it conducted an investigation and disciplined the supervisor for his conduct.
The court ruled against Williams finding that her belief was not objectively reasonable. However, here is the important part of the decision for employers in general. In discussing the results of the investigation, the court found:
Moreover, [the Company’s] management carefully avoided characterizing Williams’ complaints. While reiterating its general policy against sexual harassment, the Company’s investigations described Williams’ charge against [the supervisor] in neutral language. Contrary to Williams’ argument that [the Company] agreed [the supervisor’s] conduct was unlawful, the letter summarizing the Company’s investigation expressly concluded that, ‘while inappropriate,‘ it was ‘not actionable.’
The lesson to be learned is that it is not sufficient to simply conduct an investigation in response to complaints of sexual harassment and impose discipline if appropriate; the language used in describing the claim and the results of the investigation can also be critical to avoid liability.
The following guidelines should be used in reporting the results of an investigation:
- Avoid characterizing the complaints;
- Describe the charges in neutral language;
- Describe the findings in neutral language; and,
- Avoid conclusions that behavior is actionable or unlawful.