Thursday, January 15, 2015

Eighth Circuit Says Nipple Squeeze Is Not Enough To Prove Harassment

In an interesting case out of the 8th Circuit (Arkansas) the Court of Appeals has found that a supervisor who squeezed his subordinate’s nipple and on another occasion took a towel from the employee, rubbed it on his crotch, and handed it back to the employee, did not engage in workplace harassment.

In Rickard v. Swedish Match North America, Inc. No. 13-3729, the plaintiff, a male salesperson for the company, complained that his supervisor, Payne, acted in a crude and obnoxious fashion towards him and others. Rickard cited the incident wherein Payne, also a man, squeezed Rickard’s nipple and said “this is a form of sexual harassment”, as well as the towel incident, claiming that it evidenced sexual harassment. He complained to the company about the behavior, which Payne denied doing. Nevertheless, the company reprimanded the supervisor. After Rickard quit (allegedly over those incidents and his belief that he was also the subject of age discrimination), he sued the company.

The 8th Circuit found that to prove sex-based harassment, Rickard can (1) show the actions were motivated by sexual desire, (2) show his employer had a general hostility toward members of his sex in the workplace, or (3) offer evidence that similarly situated individuals of the opposite sex were treated more favorably.

Rickard alleged that Payne not only squeezed his nipple, but squeezed the nipples of several male co-workers, concluding that Payne received  “some perverse sexual gratification” from it. He also argued that by saying “this is a form of sexual harassment” while squeezing Rickard’s nipple, that Payne was acknowledging that he was engaging in that behavior.

The court, in upholding summary judgment for the company, characterized Payne’s behavior as both obnoxious and contemptible, but stated that the harassment claim “fails because Rickard cannot show the mistreatment he endured was based on sex.”

It would be interesting to know if the court would have reached the same outcome if Rickard were a woman. One thing is clear – while the company achieved a favorable outcome in this case, it’s a situation that no employer wants to be in.  Isolated and/or moronic behavior, even those with sexual overtones, do not necessarily meet the definition of sexual harassment, but you can bet that defense of this claim costs plenty. Training of supervisors and monitoring their behavior will ensure that a company never finds itself defending the actions of one of its supervisors who has a penchant for squeezing the nipples of his co-workers.