Welcome to Alabama, where they see your one-grope rule and raise you two grabs of the derriere.
Why? Because, according to this recent federal court opinion, the average female employee would not find getting her ass grabbed twice by a male supervisor to be offensive.
Now remember, that for a woman to prove sexual harassment, she must show five things:
- she was subjected to harassment because she was a woman
- the harassment was severe or pervasive
- she was offended
- a reasonable woman in her shoes would also have been offended
- there is a basis for holding the employer liable
Usually in cases involving discrete behavior (one or two events of harassment), the court focuses on the second element to say that the harassment was neither severe nor pervasive. In Stallworth v. Guyoung Tech USA, Inc., Ms. Stallworth claimed that a VP/Supervisor grabbed her butt twice in the same day. Well, not only did Judge Kristi DuBose find that this behavior was neither severe nor pervasive, but she concluded that the offense Ms. Stallworth took to this conduct showed that she had a thin skin:
“Arguably, Cho touching Stallworth’s butt in front of her co-workers may have been humiliating. However, the June 28, 2012 touching incident and the incident where Stallworth saw Cho hit himself in the head and make an ugly face toward her on July 10, 2012, are not conduct that was frequent, severe, or physically threatening, or of a nature that would unreasonably interfere with Stallworth’s work performance.”
Although the record indicated that Cho had given a thumbs up the second time he grabbed the plaintiff’s butt, and that he had allegedly touched three other female employees on the butt, this was not enough to sway the court that a woman in Stallworth’s shoes would have been offended at getting her butt grabbed.
I’m at a loss as to how even one butt grab from a male supervisor wouldn’t be offensive to the average female employee, but two?!?
So, here’s my advice: Unless you practice law in Alabama, disregard this opinion entirely. Do not assume that there is a two-butt-grab rule that will allow a company to get summary judgment in a sexual harassment case. Instead, don’t condone even a single grab.