A federal appeals court, in a recent decision which it declared is “not precedential,” dealt with a situation where a woman’s supervisor repeatedly called, emailed and confronted her, at home and at work, after she rebuffed his romantic overtures to her. 

In granting summary judgment to the employer, the Court, construing her claims for “hostile work environment” and “constructive discharge” under the relevant New Jersey employment discrimination statutes (which are not unlike the federal statutes), held that the supervisor’s conduct "was not severe or pervasive enough to establish a hostile work environment," and that his conduct was not sufficiently "outrageous, coercive and unconscionable" to constitute a claim for constructive discharge when she claimed that she was forced to quit.

The Court quoted approvingly from another case: “[R]epeated and unwelcome behavior is one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise.” In thereby construing the supervisor’s behavior as the kind that women must simply endure in such a “socially uncomfortable situation,” the Court disregarded the fact that the workplace is not a “social” situation.   

The Court also the cited words from another case with approval:   "Persons who are sociallytone deaf are not, by that characteristic, necessarily the equivalent of sexual harassers."

The line between harassment and uncivil conduct which is not actionable may not always be clear. Was the behavior of the supervisor towards the plaintiff, which we repeat below, simply that of a “tone deaf person,” and did the plaintiff simply have to “put up with it” because that was her lot as a woman in a “socially uncomfortable situation?”  Or was the supervisor’s behavior harassing, or more akin to that of a stalker? 

  • During lunch, the supervisor told plaintiff that he was attracted to her and had been for years.  When plaintiff rejected him, the supervisor “obviously remained distraught.” He asked plaintiff to drive his car during the return trip to the office because he had to “compose himself.” He later delayed leaving so that he could follow her to the parking lot, where he “gently grabbed her arm” and thanked her for "being so understanding."
  • The supervisor “continued to trouble her” - he sent her a text message the next morning thanking her for her considerate behavior after his “confession of unrequited romantic interest,” and then asked her for a copy of a picture of plaintiff and her boyfriend which was on her computer, and told her that it “used to bother him but that he was now ‘okay’ with it.” He also maneuvered, through a pretext, to have her meet him alone in a break room, “where he again told her how wonderful she was being.”  
  • When she emailed him that she had taken a leave of absence because of his conduct, he emailed her “apologizing for the awkward situation he had put her in, thanking her for her understanding, and asking for her forgiveness.” He emailed her again to apologize for his "boorish behavior" and to encourage her to return to work.   She requested that he stop contacting her.
  • He did not stop when she was still on leave; he called, sent emails and text messages to her.  
  • She again asked him to stop contacting her, and eventually quit her job.

After reading these facts, one could reasonably ask “Who was “tone deaf” in this case?”   

Because this decision is “not “precedential,” it cannot be cited as good law or as the pronouncement of the Court. Perhaps that’s a good thing.