by Art Gutman Ph.D., Professor, Florida Institute of Technology
The case is Redd v. NY State Division of Parole, decided on 5/4/12 [2012 U.S. App. LEXIS 9194]. T here are two interesting issues here. First, and most obvious, the claim features femalesame-sex harassment. Second, it represents an important interpretation of Justice Salia’s ruling in Ocale v. Sundowner (1998) [523 U.S. 75].
The facts are that Feddie Redd alleged (among other things) that a female division supervisor (Sarah Washington) touched her breasts on three occasions, and when she complained, she was suspended for one day and transferred to a less desirable position. The district court judge (Nicholas G. Garaufis) granted summary judgment for the defense, ruling:
Washington's alleged acts consisted of relatively minor, incidental physical contact. Even drawing all inferences in Redd's favor, the contact may have been purely accidental. There is no basis for concluding that Washington's conduct was physically threatening or humiliating. Moreover, the alleged incidents were episodic, rather than continuous or concerted.
The major feature in Scalia’s ruling in Oncaleis that the plaintiff must prove in same-sex harassment claims that the harassment occurred “because of sex.” He cited three ways in which this may be accomplished: (1) “credible evidence that the harasser was homosexual"; (2) that the harasser was "motivated by general hostility to the presence of women in the workplace”; or (3) “direct, comparative evidence about how the alleged harasser treated members of both sexes [differently] in a mixed-sex workplace. In overturning summary judgment, the 2nd Circuit ruled “A reasonable jury could not find that, more likely than not, Washington brushed up against Redd because she was female.”
The critical factor to note here is that touching of breasts per se would not constitute harassment “because of sex” if the harasser is not motivated by sexual desire, but instead, is engaging in horseplay. This is a troubling issue to the courts. Consider, for example, Wallace v. Coastal(2000), where the abuses included grabbing of the crotch and kissing gestures. Nevertheless, the DC Circuit accepted a “horseplay” defense because the abusers and the victim were both heterosexual. In contrast, in Rene v. MGM Grand Hotel (2001), an openly gay male was grabbed in the crotch, poked in the anus, and was caressed and hugged by heterosexual abusers. Originally, two of three 9th Circuit judges ruled against Rene because the harassers were heterosexual. However, the dissenting judge (Nelson) argued that “a line is crossed when the abuse is physical and sexual”. Subsequently, the case was then heard en banc ( Rene v. MGM, 2003), and 10 of 11 judges agreed with Judge Nelson’s dissent, ruling:
Offensive sexual touching was actionable discrimination even in a same-sex workforce. Here, the acts of grabbing at the employee's crotch and poking his anus were clearly sexual in nature and objectively offensive. So long as the environment itself was hostile to the employee because of sex, why the harassment was perpetrated was irrelevant.
Thus, it is possible that same-sex harassment requires another Supreme Court review to determine whether, as the en banc ruling suggests, the reasons why actions occur are irrelevant if the behavior is egregious and sexual in nature.