When does flirtation and touching by a supervisor cross the line into sexual harassment in violation of Title VII? The Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) recently addressed that issue in Corbitt v. Home Depot U.S.A., Inc. (11th Cir., July 10, 2009).

First, some background. It is well-established in the Eleventh Circuit that to sustain a claim of sexual harassment, a plaintiff must prove that the objectionable behavior was sufficiently “severe or pervasive” to alter the conditions of employment and create an abusive working environment.

But what is the meaning of “severe or pervasive”? Last year I reported on Criswell v Intellirisk Management Corp., Case No. 07-15280 (11th Cir., July 15, 2008), an Eleventh Circuit decision which held that an employee who was exposed to pornography involving a co-worker on three separate occasions stated a claim for a sexually hostile work environment under Title VII. The court held that the pictures to which Criswell was exposed “were severe enough to have altered the terms and conditions of Criswell’s employment.” But the pictures were filed under seal, and the court’s opinion does not describe them, so the decision offers little guidance.

The Corbitt decision is far more instructive. Dave Corbitt and Alex Raya were store managers at two Home Depot stores who alleged that they were sexually harassed by a gay regional human resources manager, Lenny Cavaluzzi. The opinion describes Corbitt’s and Raya’s allegations of sexual harassment in detail. They included allegations that Cavaluzzi called Corbit on numerous occasions and told him that he

could not stop thinking about” Corbitt; that Cavaluzzi knew Corbitt was not gay, but Cavaluzzi could show Corbitt how, and he would “like it;” that Cavaluzzi liked Corbitt’s “baby face;” and that Corbitt was “small and cute.” .. [that] he liked how small Corbitt was and the way he dressed, that he liked Corbitt’s dark tan, and asked if Corbitt “wore boxers or briefs or nothing.” He asked if Corbitt colored his hair and remarked that it must be Corbitt’s “natural color down there too.” He asked whether Corbitt shaved his full body, stating that it looked as though Corbitt shaved his arms. He repeatedly asked Corbitt if he “wasn’t bored with the same woman,” referring to Corbitt’s wife, asked if Corbitt and his wife “swing,” and told Corbitt to visit specified gay websites, saying Corbitt “should look at them” ….

[Opinion at 6].

Cavaluzzi allegedly engaged in similar behavior with Raya:

Cavaluzzi called Raya several times a week, asking such things as what Raya was wearing and if he was wearing the pants that Cavaluzzi liked. Cavaluzzi stated that Raya “always dressed so nice” and “was cute.” Cavaluzzi would tell Raya that he was going to be in town and asked when Raya was working and getting off work. He asked whether Raya was happily married, remarked that Raya’s hair was beautiful, and stated that he liked Raya’s green eyes. He told Raya, “I like the rough look,” and “I like your temper.” He also told Raya, “you’re the Italian heifer that I like.” He repeatedly asked Raya to meet him for drinks.

[Id. at 6-7].

Cavaluzzi also allegedly touched Corbitt and Raya on numerous occasions:

Cavaluzzi walked into the room and massaged their necks and shoulders, made comments about their hair, played with their hair, and hugged Corbitt and Raya in front of the store managers and human resources managers of the district. … That evening, Cavaluzzi called Corbitt at home and asked Corbitt to bring assistant manager files to Cavaluzzi at the Pensacola Home Depot. When Corbitt pulled into the parking lot, Cavaluzzi reached into Corbitt’s car and began massaging Corbitt’s neck and shoulders. Cavaluzzi invited Corbitt to join him at his hotel for a couple of drinks. Corbitt refused.

* * *

Around the same time, Raya was in the training room at the Daphne, Alabama store seated at a table with another employee, when Cavaluzzi came into the room. Cavaluzzi sat down next to Raya, put his arm on Raya’s shoulder “like [Cavaluzzi] was [Raya’s] best friend in the world” and put his hand on Raya’s thigh under the table. Raya moved his chair away from Cavaluzzi and stood up. Cavaluzzi then stood for a few seconds and stated, “I just wanted to let you know I’m here” and walked out of the room.

Within a month after this incident, Raya attended a training meeting at the Pensacola Hampton Inn. In front of nine or ten store managers, Cavaluzzi came up behind Raya and began running his fingers through Raya’s hair.

In June, Home Depot held a grand opening at the new Pensacola store, at which Raya made a presentation in front of approximately 200 contractors. After completing his speech, as Raya walked down from the podium …Cavaluzzi then gave Raya a hug and massaged Raya’s back. Raya testified that Cavaluzzi pressed his whole body against Raya, such that Cavaluzzi’s body was touching Raya’s “privates” during the hug.

In August, Corbitt was working alone in the training room of the Montlimar store when Cavaluzzi “snuck up” behind him, put one of his hands on Corbitt’s shoulder, and rubbed Corbitt’s stomach with the other. Corbitt pulled away.

At an August meeting, Cavaluzzi massaged Raya’s neck and shoulders while commenting that Raya was in good shape and felt muscular and trim. He complimented Raya’s physical build and asked Raya if he worked out. Raya walked out. …

At a November meeting, when Corbitt entered the room, he stuck out his hand to shake hands with Cavaluzzi, but Cavaluzzi pushed Corbitt’s hand to the side and instead gave Corbitt a hug. Before Corbitt could pull away, Cavaluzzi started rubbing Corbitt’s back, neck, head, and shoulders. When Corbitt pulled away from Cavaluzzi, Cavaluzzi asked, “How are you doing?” Corbitt responded that he was cold, and Cavaluzzi said, “Maybe we should cuddle later.”

[Id. at 7-9].

Based on these allegations, the district court held that Corbitt and Raya could not demonstrate that Cavaluzzi’s behavior was sufficiently severe or pervasive to alter the terms and conditions of employment. Therefore the court granted summary judgment to Home Depot. The plaintiffs appealed from this ruling.

The Eleventh Circuit affirmed the district court’s ruling, drawing a distinction between conduct that may be inappropriate for the workplace, and conduct that is actionable under Title VII. Citing precedent from the United States Supreme Court and the Eleventh Circuit, the court noted that only statements and conduct of a sexual or gender-related nature can be included in the analysis. “Innocuous statements or conduct, or boorish ones that do not relate to the sex of the actor or of the offended party . . . are not counted.” Similarly, “[f]lirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment.” Thus, Cavaluzzi’s telling Raya that he liked how Raya dressed, that he liked his pants, that his hair was beautiful, and that he liked his green eyes “is not actionable conduct under Title VII.” Nor were Cavaluzzi’s statements to Corbitt that he liked the way Corbitt dressed or that he was cute; “those are simply flirtatious compliments.” Putting an arm around an employee as a gesture of friendship is also not sexual, and therefore not actionable under Title VII. [Id. at 26-27].

The court recognized that Cavaluzzi did engage in some sexual conduct toward the plaintiffs. The court counted five touchings and one comment that were sexual in nature toward Raya, and four touchings and four comments that were sexual in nature toward Corbitt. But the court held that such conduct was neither severe nor pervasive. Plaintiffs admitted that most of the touchings were “quite brief.” And, according to the court, the fact that they were same-sex touchings did not make them any more severe. The court recognized that some of Cavaluzzi’s comments to Corbitt were “relatively severe” (e.g. “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it”). But, the court noted, “we examine conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct was sufficiently severe or pervasive. … The fact that only several of the comments were sexual in nature and happened during brief phone calls leads us to agree with the district court that the conduct was not sufficiently severe or pervasive.” [Id. at 31].

For employment practitioners in the Eleventh Circuit, the Corbitt decision provides invaluable guidance in analyzing claims of sexual harassment. Corbitt should also hearten employers who may be afraid that even mild flirtation in the workplace violates Title VII. It does not. Only “severe or pervasive” conduct will give rise to an actionable claim for sexual harassment. Corbitt helps us understand what those words mean.