One of the items I talk about in a sexual harassment prevention training is that people’s perception of what sexual harassment is, may differ from how a court defines it.
Suppose I told you that the owner of a small company that you worked at and reported to made inappropriate comments in discussing the size of his genitals on more than one occasion, mentioning having the office holiday party at a strip club, and suggesting that you wear more revealing clothing to attract more clients.
Is that enough to establish a claim of sexual harassment?
No, says one recent Superior Court case, in Robinson v. Purple Hearts Home Care, LLC.
As the court notes, a plaintiff must allege that the “level of harassment went beyond a few stray comments and instead permeated the workplace to such an extent that it affected an employee’s work on a day to day basis”.
Here, the court said, these facts are not sufficient to indicate that the plaintiff was a victim of sexual harassment “because she has not alleged that the comments were a continuous and pervasive aspect of her working life” nor that the comments “had a negative impact on her day to day work”.
The case is a reminder that the burden to establish a sexual harassment claim isn’t mere isolated incidents unless the incidents are sufficiently severe.
For employers, this still isn’t conduct that employers should engage in and an example of how conduct that some people might find offensive, may still not rise to the level of “sexual harassment” as courts define it.