Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They?

illustration by Mark Normand -- http://presentationslides.blogspot.comIs the Eleventh Circuit Court of Appeals going to reverse its decision in the controversial case of Corbitt v. Home Depot?

Last August I reported on this decision by the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), in which the court analyzed the claims of two former Home Depot employees who claimed their male supervisor repeatedly subjected them to unwanted flirtatious compliments and sexual touchings.  The plaintiffs alleged that the supervisor made such comments as "your hair is beautiful," and "I like your green eyes" and touched the plaintiffs in a sexual way on several occasions.  He even allegedly told one of the employees, “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it."  The court held that under the totality of the circumstances, the supervisor's conduct was not sufficiently severe or pervasive to constitute sexual harassment under Title VII. 

In December the court issued a revised opinion that reached the same result on the plaintiffs' sexual harassment claims. 

Today, however, the court vacated its December opinion and announced that the case will be reheard en banc, i.e. by the whole court rather than a three-judge panel.  This is a significant development that may portend a reversal of the holding in Corbitt and a change in the law on sexual harassment in the Eleventh Circuit. Stay tuned.


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A1Worker - March 11, 2010 12:34 AM

Every malicious or sexual act no matter how brief should be treated as sexual harassment.

Auden L. Grumet, Esq. - March 11, 2010 10:56 PM

Speaking for myself, I just hope, with all the passion I can muster, that the Corbitt decision(s) does NOT get overturned. To be sure, I'd like to see the court [continue to] go the OTHER way. As Camille Paglia and other bright contemporary sociologists, evolutionary biologists and thinkers have noted, our society - particularly in the workplace - has become so rigid, narrow-minded and downright paranoid that we have completely lost sight of what it means to be a human. And we must not forget that one of the most fundamental evolutionary aspects of being a homo sapien - a member of the animal kingdom - is our sexuality.

Quite frankly I think American law in this context [e.g. Title VII, sexual "harassment"] has devolved to a point beyond the absurd. To suggest that flirting, and even superficial/casual "touching", among persons - regardless of whether it occurs in the workplace and notwithstanding the fact that one may act in a supervisory capacity to another - is somehow "wrong" or should be deterred is preposterous!

Indeed, our corporate conglomerations have grown so large, and we now spend such a significant portion of our lives in the workplace, coupled with the fact that despite advances in technology, we are in many ways more socially alienated than ever before, means that it has become increasingly difficult to meet others with whom to partner or "mate". This, in turn, means that romance AND FLIRTING in the workplace is actually more important than ever!

This is NOT to say, however, that I do not believe there are some [very narrow and limited] circumstances in which this kind of interaction becomes improper, but such conduct must be characterized by, and limited to, the most egregious, repetitive, disruptive and UNWANTED physical touching - not unlike the kind of conduct that would rise to the level of criminal sexual battery. And behavior meeting this threshold so as to warrant administrative or legal sanctions - to say nothing of civil liability and damages - is extraordinarily rare. Furthermore, I believe that prior notice - by the "victim" to the "accused" - should be a prerequisite to sustaining a cause of action or adverse employment decision and that the former MUST be compelled to make it absolutely and unequivocally clear to the latter that the conduct/touching is unwanted.

I realize my opinion may be inconsistent with the current state of law - in other words, I do not recommend that an individual or employer act in any way that would expose he, she or it to adverse legal ramifications (said another way, this is not formal legal advice:). But I DO believe and hope that our legislature and judiciary should and will eventually come to pass and implement rules and regulations that are consistent with my views and with a MUCH more logical, liberal and natural (in the evolutionary sense) state of affairs.

Auden L. Grumet, Esq.
Atlanta, GA

Auden L. Grumet, Esq. - April 25, 2010 10:41 PM

"Every malicious...act...should be treated as sexual harassment", avers "A1Worker", the blogger above!

Thus, if someone intentionally stomps on your toe, be it at a ballgame or in your office - or tells you you're a jerk - whether after you [allegedly] cut him or her off on the road while driving or after you close the elevator door without waiting - all such "malicious" acts should be categorized as "sexual harassment"? That would be the result with a rule implemented under such (non) logic!

It is precisely this kind of thoughtless, impulsive and absurd assertion that epitomizes why I often feel completely hopeless about the state of affairs - legal, moral, economic and otherwise - in this country. And unfortunately such generalized, wide-sweeping ridiculous utterances, which find absolutely no basis in logic, law or ethics, are all too common.

Just imagine what life would be like if persons like "A1Worker" were drafting the laws and making legal decisions in society!

Auden L. Grumet, Esq.

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