Why a single kiss could have one employer in boiling hot legal water

sexharass.jpegI give a lot of “respect in the workplace” trainings. And I generally tell the audience that, while a single offensive comment or act in the workplace is one incident too many, one instance generally does not create a winning lawsuit. That’s because a plaintiff must show that he/she was subjected to either severe (really, really bad) or pervasive (a lot of bad) behavior to establish a hostile work environment.

Now, there are some exceptions. New Jersey is one of the few states that has held that a single discriminatory comment can create an actionable hostile work environment claim.

But what if, instead of a slur, we have an assault; one which the plaintiff claims was not only unwelcome, but particularly disturbing?

A single incident may be sexual harassment.

In this recent case, the plaintiff alleged that her boss grabbed her, “forcibly” pulled her back and, kissed her on the neck. This alleged behavior┬ácaused the plaintiff emotional distress.

Undoubtedly, an objective person would find this alleged behavior offensive. But, is this single act severe enough to create a tenable hostile work environment claim?

According to a NY federal court analyzing the claim under state and local law, maybe yes:

There can be no disagreement that, if true, the event Plaintiff describes is disgusting and unacceptable. Whether the objective character of Plaintiff’s allegations rise to the level of extraordinary severity, however, is a close and difficult question. Nonetheless, the Court cannot conclude that, taken as true, they are so inadequate as to warrant dismissal. Though these allegations may not ultimately lead to liability, they are not deficient as a matter of law; assessment of such intermediate allegations is best left to a jury. The Court accordingly will deny Defendants’ motion to dismiss.

Employer takeaway:

While this decision does not involve Title VII, a federal anti-discrimination statute that protects employees from sexual harassment, it’s nonetheless a wake-up call for employers to educate and train their employees about behaviors that are not acceptable in the workplace. Because, even if a single incident is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you’ll have to spend valuable time, money, and resources defending.

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