The Second Circuit reverses summary judgment in a Title VII same-sex harassment suit, finding that three intimate touchings over a five-month period by a supervisor may constitute a hostile work environment, and that the employer's defense it responded appropriately to the employee's oral complaints of harassment needed to be tried to a jury. The court reaffirms that while a workplace inevitably involves personal intrusions and employees surrender some autonomy, "giving up control over who can touch their bod[ies] is usually not one of them."
Redd v. New York State Division of Parole, No. 10-1410 (2d Cir. May 4, 2012): The employee's pro se complaint alleged three incidents where a female Area Supervisor (named Washington) apparently touched the employee's breast on purpose: "[o]n April 19, 2005, June 16, 2005, and September 15, 2005, Ms. Washington . . . sexually harassed me by brushing up against my breast while I was sitting at the computer, and she rubbed my hand. Ms. Washington never apologized to me for touching me, and I backed away from her to refuse her advances." The district court dismissed the action, holding that three such touchings were insufficient as a matter of law to total up to actionable sex harassment, and alternatively that the department proved its affirmative defense under Faragher/Ellerth that it took appropriate corrective action.
The Second Circuit reverses and sends the case back for trial. The panel expresses frank surprise that the district court thought that three such events did not present a triable issue of fact about a hostile work environment:
"[T]he district court, in finding that 'Washington's alleged acts consisted of relatively minor' and 'incidental physical contact,' . . . did not view the record in the light most favorable to Redd or credit inferences that were permissible from her descriptions of the events she physically experienced. The repeated touching of intimate parts of an unconsenting employee's body is by its nature severely intrusive and cannot properly be characterized as abuse that is 'minor.' This not a manner in which women 'routinely interact,' . . . and it is not conduct that is normal for the workplace. 'When entering a workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but giving up control over who can touch their bod[ies] is usually not one of them.'" [Citation omitted.]
The panel noted that it was not necessary for the employee to allege or prove continuous breast-touchings, in view of the inherent severity of the intrusion:
"Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment, and Redd testified that Washington engaged in that conduct three times. The evidence that Washington repeatedly touched Redd's breasts; that Washington never apologized or indicated in any other way that her touchings were accidental; that Washington repeatedly requested that Redd come into her office even though she was not Redd's immediate supervisor; and that Redd, apprehensive of further repetition, consequently felt the need to avoid Washington, would allow a rational juror to find that Washington's conduct was not only severe, but pervasive."
Moreover, an inference could fairly be drawn from these facts that the contact was "because of sex":
"Redd inferred that Washington's touching, feeling, and rubbing up against Redd's breasts were 'homosexual advances' (Complaint ¶ 8). 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. Although Washington denied that she had 'sexually harass[ed]' Redd or 'touch[ed] PO Redd in any inappropriate manner' (Washington Aff. ¶ 6), the jury would not be required to believe those denials; hence the district court, in determining whether the Division was entitled to judgment as a matter of law, was required to disregard them. . . .
* * * *
"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 stated desire was because of the employee's sex. A district court could not properly rule as a matter of law 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."
Finally the court holds that the employer did not establish its affirmative defense under Faragher/Ellerth as a matter of law, either because there was an arguable "tangible job action" (a suspension) or because the employer did not adequately respond to the employee's complaints:
"In asserting the defense, the Division did not indicate that it had taken any preventive or corrective action; rather, it contended that no such action was required because Redd did not sufficiently complain about Washington's conduct. It is undisputed that, with respect to Washington's alleged sexual harassment, Redd did not file complaints in writing; she testified in her deposition that to file such complaints would have subjected her to criticism from her coworkers . . . . However, Redd testified that she complained orally to Burgos. . . . Burgos, the Division's Director of Human Resources, acknowledged that his office investigates harassment complaints and that it disciplines supervisors found to be engaging in 'activity that could be described as sexually harassing' . . . . And despite testifying that he did not recall whether Redd had complained about Washington 'directly' to his office . . ., his testimony indicated that it was sufficient for Redd to make a complaint directly to Burgos himself: He testified as a general matter that '[i]f you made a complaint to me or my office, . . . it would be investigated.'"
Because the record evidence was in dispute as to whether such oral complaints were made in this case, the panel remands for a trial on the defense.