The case is Lewis v. City of Norwalk, a summary order decided on April 14. Plaintiff was the City's Director of Management and Budget. His openly gay supervisor, Hamilton, began making advances on plaintiff. Here is how the Court of Appeals (Calabresi, Cabranes and Livingston) sums up the evidence:
Specifically, Hamilton is alleged to have “leered” at Lewis, looking from his crotch to his head while smiling, and to have made gestures with his tongue, which Lewis found “irritating.” Lewis claims that this conduct occurred a couple of times a week in the beginning but became more sporadic over time, occurring no more than a handful of times in 2008-09. Lewis’s other allegations are that Hamilton complimented his taste in clothing; invited Lewis to join his gym so that they could work out together; invited Lewis out for drinks; and disclosed to Lewis that he was lonely in his current relationship, and asked for help dealing with his loneliness. Once, when Lewis was in his office, Hamilton banged on the door and, when Lewis told him not to come in because he was changing into his jogging clothes, Hamilton waited outside until Lewis came out and then spoke with him excitedly.This is not a hostile work environment, the Court says. Here's the reasoning:
The only arguably overt sexual conduct was Hamilton’s alleged licking of his lips and so-called “leering,” which, by Lewis’s own admission occurred only sporadically over time, and no more than a few times a year by mid-2009. Even assuming the conduct occurring prior to July 2009 is not time barred, which it may be under Title VII, the alleged “leering” is insufficiently severe or pervasive to qualify as having created a hostile work environment. The other “facially sex-neutral incidents”— invitations to join Hamilton’s gym, invitations to have drinks with other co-workers, and discussions about Hamilton’s personal life—even if they made Lewis subjectively uncomfortable, do not, under a “totality of the circumstances” inquiry, “create . . . an environment that a reasonable person would find hostile or abusive . . . .” Accordingly, we conclude that the District Court properly granted summary judgment for defendants on the Title VII hostile work environment claims.
Could this case have been decided the other way? It wasn't just leering. Hamilton also "made gestures with his tongue." Use your imagination on that one. It also looks like Hamilton wanted some action with Lewis, and was inordinately interested in Lewis in general. Would the result have been different if a man behaved like this to a woman? A jury could think so. Remember what the Court of Appeals said in Gallagher v. Delaney (1998):
Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation. The factual issues in this case cannot be effectively settled by a decision of an Article III judge on summary judgement. Whatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications.The plaintiff was eventually fired from his job. He claims it was because he complained about Hamilton's behavior. Management said he was fired for poor job performance, and that they were already thinking about firing plaintiff even before he complained about harassment. Plaintiff complained in response to being told that he was in danger of being fired. After an investigated deemed the complaint uncorroborated, the City went ahead with the termination. The Court of Appeals agrees that plaintiff has no retaliation case. It notes that the Supreme Court held in 2001 that "employers need not suspend previously planned employment actions upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatsoever of causality."