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Posted on Wednesday, February 26, 2014

Did Boss’s Shoulder Touching and Suggestive Comment Constitute Sexual Harassment?

A female sales manager for an office furniture company alleged that on two separate occasions, her male supervisor acted inappropriately while driving her back to her hotel after company-sponsored training sessions. In the first instance, the pair had been at dinner with a group of co-workers when the supervisor insisted on driving the female employee back to the hotel. During this drive, the supervisor reached his arm around the female employee who was sitting in the passenger seat, and he put his hand on her right shoulder where he left it for about a minute. During the ride, the supervisor is alleged to have said that he had done a lot to get the female employee the job, and that she owed him to do “the right thing by him.” A few nights later after a similar post-training group dinner, the supervisor again insisted on driving the female employee back to the hotel. He again extended his arm to put his hand on her right shoulder, leaving it there for most of the fifteen- to twenty-minute drive back to the hotel.

The female employee was eventually fired for poor performance in a decision made by the male supervisor, and she then sued the company for sexual harassment. But her claim for sexual harassment was dismissed. A Massachusetts federal appeals court acknowledged that it would be “uncomfortable” for a female employee to have her male supervisor’s unwelcome arm around her while commenting that she owed him for hiring her. But the court noted that the two incidents ended quickly, and for the next ten months of employment there was no allegation of further inappropriate conduct by the supervisor. Citing the well-established legal standard for hostile work environment claims, the court concluded that the supervisor’s objectionable conduct was not pervasive by any measure, and that compared to other sexual harassment cases that had come before that court, this case was not even close.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com

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