Sixth Circuit Finds Hugging, Sexual Hand Gestures and Comments Do Not Amount to Sexual Harassment
April 24, 2009
The Sixth Circuit Court of Appeals recently held that a fire marshal’s hugs and remarks to a female dispatcher were not severe or pervasive enough to constitute a hostile work environment based on sexual harassment. In Hensman v. Riverview, the plaintiff was a firehouse dispatcher, who claimed that the fire marshal made various comments to her throughout the six week period that they worked together. Among other things, the plaintiff alleged that the fire marshal told her he was “distracted by how attractive she was,” complimented her perfume and continuously “sniffed” her, stated that she was “voluptuous” and “well-endowed,” and that she “looked cute in her jammies.” He also closed the door to her office while paying visits, walked uncomfortably close to her, gave her several unwanted hugs, and at one point grabbed her arm so hard that it left marks.
The trial court determined that plaintiff failed to state a claim for hostile work environment because the incidents alleged were “overwhelmingly nonsexual.” The Sixth Circuit, however, disagreed and determined that almost all of the plaintiff’s allegations “could be considered sexual.” Despite this finding, the Sixth Circuit determined that the incidents alleged were not sufficiently frequent or severe to rise to the level of a hostile work environment, specifically noting that the fire marshal’s conduct was not physically threatening or humiliating.
It is important to note that the Sixth Circuit based its holding more upon the infrequency of the alleged conduct rather than upon the alleged inappropriateness of the conduct itself. Even though the employer prevailed in this decision, this case underscores the importance for employers to be vigilant against inappropriate conduct in the workplace and be pro-active in training employees. While the alleged conduct eventually was deemed not to rise to the level of actionable harassment, employers that encounter similar behavior should consider it to be a serious violation of their harassment policies.