In Turner v The Saloon, 2010 WL 424580 (7th Cir, Feb 8, 2010), the Seventh Circuit reversed summary judgment for an employer in a sexual harassment/hostile work environment claim brought by a male employee based on the alleged sexual advances of his female supervisor. The decision is important not only due to its analysis of this "unusual" claim, but also because it provides helpful guidance on the types of conduct readily giving rise to hostile work environment claims and related issues that employers should recognize to avoid exposure.
The Turner Decision
Paul Turner sued his former employer, a Chicago restaurant called The Saloon, for hostile work environment sexual harassment based on the alleged actions of Turner's female supervisor. Turner and his supervisor previously had a nine-month sexual relationship. After Turner ended it, the supervisor allegedly retaliated against Turner by altering his table-waiting assignments, writing him up for unwarranted discipline, reprimanding him in front of other employees, and engaging in unwanted sexual conduct. The alleged unwanted sexual conduct consisted of the supervisor: (1) putting her hands inside Turner's pant pockets, grabbing his penis and telling him, "You sure are soaked" after a customer had spilled champagne on him; (2) pressing her chest against Turner and asking him, "Don't you miss me?"; (3) asking Turner to kiss her; (4) approaching Turner from behind and grabbing his buttocks; and (5) watching Turner change into his work uniform and telling him that she missed seeing him naked. Turner also presented evidence that he told his supervisor to stop her advances and complained to management about her behavior. Turner's complaints prompted management to meet with the supervisor and explain that the restaurant did not tolerate sexual harassment of any employees. Turner contended this response was insufficient.
The trial court awarded summary judgment to The Saloon, finding that all but one of the incidents contributing to the alleged hostile work environment were barred by the statute of limitations, and the only incident that was not so barred was insufficient to constitute a hostile work environment. The Seventh Circuit reversed, finding that Turner had raised a material fact issue of hostile work environment harassment and if he could further show a basis for employer liability (which was not decided by the lower court), his claim could proceed to trial. In reversing the trial court's decision, the Seventh Circuit determined that none of the alleged acts were time-barred. In accord with Supreme Court precedent, the Seventh Circuit found that the entire scope of a hostile work environment claim – including any acts occurring outside the statutory time period – must be considered if even one alleged act contributing to the claim occurred within that time period. Because one of Turner's alleged acts of harassment was timely, all the alleged acts contributing to Turner's hostile work environment claim had to be considered.
The Seventh Circuit decided that all the alleged acts of Turner's supervisor, taken as a whole, were sufficient for the harassment claim to survive summary judgment. The Court emphasized that three of the alleged incidents involved inappropriate touching. The Court noted that inappropriate touching, as opposed to verbal conduct, greatly increases the severity of a claim and thus, such conduct can be more readily deemed actionable harassment. This is especially true where the touching involves "an intimate body part." Accordingly, the Court noted that the supervisor's grabbing Turner's penis through his pant pockets was probably severe enough by itself to create an issue of harassment for trial. But even if it were not, the Court concluded that, taken together, the "five specific instances of overt sexual harassment" alleged by Turner – including three "aggressively physical" incidents – were sufficient to survive summary judgment. While the Court also considered the non-sexual conduct alleged by Turner (his assignment to less profitable tables, and supposedly unwarranted discipline and reprimands) as further contributing to the alleged hostile work environment, it indicated that this additional conduct was unnecessary to the Court's finding.
The Turner decision is a good reminder of the type and extent of conduct that is sufficient to establish a claim of hostile work environment harassment. Any alleged inappropriate touching – even if only a few instances – will dramatically heighten the severity and thus, the exposure for a harassment claim. The more aggressive such conduct is, the fewer instances are needed to support a claim. As the Court noted, "harassing conduct does not need to be both severe and pervasive." Moreover, the decision teaches that when a supervisor engages in such unwelcome sexual conduct, it does not matter whether he/she is purposely being hostile or merely trying to fan the fires of a past or potential romance. The behavior is nonetheless actionable.
An additional cautionary note highlighted by the Turner decision is that women are just as capable of harassment and consequently, just as much a target for a harassment claim, as men. It is not more difficult for a male harassment victim to establish a claim simply because the alleged perpetrator is female. Indeed, the Turner Court found it helpful to "hypothetically transpose the sexes of the parties" and in doing so, found "no doubt" that a harassment claim would be established if Turner were a female alleging similar conduct by a male supervisor. As the Court determined, the same conclusion must apply here.
Finally, the decision provides a helpful lesson about the aftermath of consensual sexual relationships between supervisors and subordinates. Such relationships create exposure for the employer because the subordinate employee can later complain about the supervisor's prior amorous or sexual behavior and allege it was unwelcome harassment. As shown in Turner, such claims are particularly troublesome and costly because they readily survive summary judgment. As the Turner Court explained, a plaintiff employee need show only that his/her workplace was both subjectively and objectively hostile to survive summary judgment. This can be readily accomplished if there is sufficient amorous or sexual behavior that would be unwelcome and offensive to a reasonable person (i.e., one not involved in any sexual relationship with the supposed harasser); and by showing that the alleged victim complained about the conduct. While the presence of a past sexual relationship sometimes may provide an ultimately effective defense to a harassment claim (e.g., by showing that the conduct was not unwelcome harassment but rather welcome affections from a lover, or, even if unwelcome, the conduct was engaged in because the harasser was angry that the relationship ended and not because of the harassee's sex), this provides little solace to employers where, as in Turner, such issues proceed to trial.