As we blogged earlier this week, the social media era is increasingly impacting the landscape of hostile work environment claims. With that in mind, it is important for employers to understand what it takes for plaintiffs to avoid dismissal of their claims and hold employers liable in sexual harassment cases.
Generally, isolated instances of improper behavior do not rise to the level of “severe or pervasive” conduct needed to establish liability for sexual harassment. If, however, a single incident was “extraordinarily severe” it may suffice to state a claim.
But what makes an incident extraordinarily severe?
Recently, a New York Federal Court considered this question when addressing allegations brought under New York’s Human Rights Law (which is analytically identical to Title VII claims) involving a male supervisor who asked a female employee out to a bar, stroked her hand in a sexual manner, and then forcibly pulled her in and kissed her on the neck. In the Court’s opinion, the severity of the of the incident was a question best left for the jury, and the fact that there was a single incident did not warrant dismissal of the plaintiff’s claims.
However, other courts in New York have interpreted similar facts in drastically different ways. For instance, earlier in 2013, a New York state court dismissed a sexual harassment case for failure to state a claim where the plaintiff’s supervisor grabbed her, demanded that she sleep with him, and then forcibly kissed her. The court found this isolated incident, along with an alleged longstanding but infrequent pattern of sexually explicit comments, to be insufficient to withstand a motion to dismiss.
While there appears to be no clear answer for when a single isolated incident amounts to sexual harassment in the workplace, employers should be aware that liability for isolated acts is possible, or, at the very least, may lead to lengthy litigation if judges are not willing to dismiss the claims. Defending these lawsuits can be expensive, so it is important to take steps (like the ones suggested here) to minimize sexual harassment in the workplace at the outset.