Is It Harassment If A Supervisor Makes An Employee Wear a Speedo, Touches His Butt, and Asks Him Out For Drinks?

No – the Tenth Circuit Court of Appeals recently affirmed summary judgment against an employee’s sexual harassment claim even though his supervisor required him to wear a speedo and touched his butt.

In McElroy v. American Family Insurance, the plaintiff worked as a sales manager for an insurance company. No. 14-4134 (10th Cir. Oct. 30, 2015). The plaintiff alleged that his supervisor complimented his appearance, clothing, and cologne; touched his back and buttocks, ostensibly to illustrate the location of the supervisor’s back pain; instructed the plaintiff to participate in two body-fat contests during which he required the plaintiff to wear a speedo and tried to touch his buttocks; and repeatedly asked the plaintiff to join him for drinks during a company event. After the plaintiff was fired, he sued for alleged sexual harassment.

Even though the district court acknowledged that some of the supervisor’s actions could make others feel uncomfortable, the district court dismissed the case on summary judgment. The district court reasoned that the plaintiff’s allegations did not establish that the alleged harassment was sufficiently severe and pervasive to give rise to an actionable claim.

The Tenth Circuit Court of Appeals affirmed. The court explained that the district court’s acknowledgment that the supervisor’s actions could make others feel uncomfortable was not enough to satisfy the high standard for hostile work environment claims.

The McElroy case is another illustration of the principle that courts will not find actionable hostile environment claims unless the conduct is truly so severe and pervasive as to poison the work environment. This is a difficult standard for plaintiffs to satisfy. Merely alleging inappropriate behavior in a handful of instances is generally not enough. In various cases, courts have held that there is no liability even if a supervisor: (i) screams, curses, and acts like a jerk towards employees; (ii) tells fat jokes and farts at employees; or (iii) squeezes an employee’s nipple (a single time). An employer can even fire an employee for being too attractive.

Takeaway: The standard for an actionable hostile work environment claim is high, but employers would be wise not to tempt fate. If at all possible, it remains a good idea for employers not to require employees to wear speedos and not to try to touch employees’ rear-ends.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on November 9, 2015, in Discrimination and Harassment and tagged . Bookmark the permalink. Comments Off on Is It Harassment If A Supervisor Makes An Employee Wear a Speedo, Touches His Butt, and Asks Him Out For Drinks?.

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