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The Employer Handbook Blog
A coworker touched her three times. The first two reports didn’t count. The employer’s response to the third won it the case.
When a coworker grabs a colleague three times, a Seventh Circuit majority says a jury could find sexual harassment. The employer still won. The reason why is more useful to HR than the result.
TL;DR: A production employee claimed a coworker touched her buttocks on three occasions over several months. The Seventh Circuit affirmed summary judgment for the employer, not because the conduct was not serious enough, but because she framed her first two complaints to a supervisor as accidents, giving the company insufficient notice of harassment. Once she formally reported the third incident to HR in writing, the company investigated promptly and the harassment stopped.
Three incidents, a split panel, and a close call for the employer
The employee worked the second shift at an Illinois tortilla factory. She had a disability limiting her to a modified role, and some coworkers resented it; one collected signatures to petition for her termination. She alleged that same coworker touched her buttocks three times: rubbing his genitals against her as he passed, groping her with his hand, and a third incident she promptly reported to HR. The Seventh Circuit affirmed summary judgment for the employer.
Two of three judges found a reasonable jury could conclude that three unwanted touchings of an intimate body part, viewed in total and against the apparent campaign to push the employee out, constituted a hostile work environment under Title VII. The third judge would have affirmed on severity grounds alone. Close case.
The employee’s own words undermined the first two complaints
The employer tried to argue the supervisor was too low-level for her reports to count as company notice. The court rejected that — the company’s own handbook designated immediate supervisors as proper recipients of harassment complaints, making the employer accountable to the standard it created for itself. The problem for the employee wasn’t who she told. It was what she said.
After the first touching, she told the supervisor but framed it as possibly accidental. After the second, she reported “a new accident” with the same coworker. Seventh Circuit law requires enough information to make a reasonable employer think there was some probability of sexual harassment. Two reports of what sounded like accidental contact in close quarters didn’t clear that bar.
Worth noting: after the second incident, the supervisor asked if it could have been an accident. She said she didn’t think so, then walked away. A dissenting judge would have sent the case to a jury on that exchange.
What a proper investigation looks like
The third incident changed everything. After it happened, the employee submitted a written statement to HR describing all three incidents. HR interviewed both her and the coworker separately within days. It concluded the conduct could not be substantiated but issued the coworker a corrective letter directing him to change his behavior toward her. The harassment stopped. A prompt investigation that ends the conduct is the hallmark of adequate corrective action, and the company cleared it.
Four lessons most likely to change outcomes in the next case
Low-level supervisors don’t get to be off the books when it’s convenient. If your handbook says employees can report harassment to their immediate supervisor, that supervisor is part of your notice chain. You don’t get to designate someone as a complaint recipient and then disclaim responsibility for what they knew.
Vague framing cuts both ways. This employer won partly because the employee called the first two incidents accidents. But supervisors who hear repeated complaints about the same coworker should be asking follow-up questions regardless of how the employee frames it. The dissent shows how thin the margin can be.
The response to the third complaint is worth replicating. HR investigated within two days, interviewed the parties separately, issued a written corrective letter, and the harassment stopped. Report, investigate, document, act. That sequence is exactly what employers need to show.
Physical contact with intimate body parts is treated differently. The majority called direct contact with an intimate body part one of the most severe forms of sexual harassment. Three incidents over a year was enough for two of three judges to find a triable claim.
Three incidents cost this employer a trip to the Seventh Circuit and a divided panel. The only reason it didn’t cost more is that the employee’s own words made the first two complaints look like noise. That is not a compliance strategy.