Circuit vacates summary judgment in same-sex harassment case

The Court of Appeals has reinstated a same-sex workplace harassment claim, breathing life into the Supreme Court's Oncale precedent in holding that a jury could find that a supervisor created a hostile work environment by touching the breasts of her female subordinate on three occasions over the course of a five-month period.

The case is Redd v. New York State Division of Parole, decided on May 4. The district court granted summary judgment on the following evidence: while employed by the Division of Parole, Ferdie Redd was the object of supervisor Sarah Washington's sexual advances. In April 2005, Washington "brushed up against Redd's breasts." This so startled Redd that she spilled water all over some workplace documents. In June 2005, while Redd was walking down the hallway with a co-worker, Washington "came up and she touched my breasts and rubbed up against it again in front of this parole officer." In September 2005, after approaching Redd's workspace for no apparent reason, Washington again "reached over and touched and brushed up against Redd's breasts."

The Second Circuit (Kearse, Raggi and Walker) rejects the district court's analysis, i.e., that a jury cannot find that Washington did this to Redd because of Redd's gender, and that these were "relatively minor, incidental physical contact[s]." And these contacts "may have been purely accidental" and were not "physically threatening or humiliating." Under the totality of circumstances, and viewing any ambiguous evidence in the light most favorable to Redd, the Second Circuit notes, "Redd inferred that Washington's touching, feeling, and rubbing up against Redd's breasts were 'homosexual advances.' We see no principled reason why a jury, considering the evidence of repeated touching of such gender-specific body parts, would not be permitted to draw the same inference." The evidence also suggests that, in fact, Washington's advances were physically threatening, as "Washington ... repeatedly made physical contact with -- and repeatedly felt -- intimate parts of Redd's body." As Washington harassed Redd in front of another parole officer, the Court also finds that a jury could deem this contact humiliating. And it was not incidental: "as to each instance, a jury could find that Washington, without any apparent legitimate need had contrived to be in close proximity to Redd, and had touched her breasts." Nor was it accidental: Washington went out of her way to do this, and she never apologized or indicated that it was an accident.

OK, so that harassment was not episodic, accidental or incidental. Was it it because of gender? The Supreme Court in Oncale Sundowner Offshore Services, 523 U.S. 75 (1998), said that Title VII prohibits same-sex harassment. But the Court of Appeals does not hear too many cases like this. Most sexual harassment case are male-on-female, and the gender component is obvious. Oncale says that "the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Also, "in same-sex (as in all) harassment cases, the inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. ... Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive."

Like many Supreme Court cases, Oncale provides vague guidance. So the Court looks to the Seventh Circuit, which says that "casual contact ... in the absence of aggravating circumstances such as continued contact after an objection" does not violate Title VII. "But when the physical contact surpasses what (if it were consensual) might be expected between friendly coworkers ... it becomes increasingly difficult to write the conduct off as a pedestrian annoyance." The Second Circuit likes this language, and it fuses that with the old standby about requiring juries to resolve disputed issues about state of mind or intent. Under these standards, the jury could find that Washington did this to Redd because of her gender. The Court says:

although the district court found it material that "Redd d[id] not attribute any suggestive or sexual remarks to Washington," a factfinder, instructed to use "[c]ommon sense" would be entitled to draw inferences as to intent and motivation from conduct as well as from words. If the claim were that a supervisor--of either gender--stated to a female employee "I want to feel your breasts," or stated to a male employee "I want to feel your penis," a jury could easily infer that that stated desire was because of the employee's sex. A district court could not properly rule as a matter of law that that gender-specific harassment was not because of the employee's sex. It is no more permissible to rule as a matter of law that the supervisor's harassment was not because of the employee's sex when the supervisor repeatedly--albeit silently--touched, rubbed up against, and felt those gender-specific, intimate parts of the employee's body. Given the permissible inference that Washington's touchings were not accidental, we cannot affirm a dismissal that, in effect, holds that such repeated sexually abusive, gender-specific actions are less probative than words.