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SPLF Employment Blog

Can I Have a Case for Sexual Harassment If Something Happened Once?

Difficulties with sexual harassment suitsIf you are the victim of sexual harassment, the law is not a mathematical formula. If it is serious enough, a single act of harassment could be considered illegal sexual harassment, though generally, the more often it happens, the stronger the case. For example, if a billionaire real estate developer grabbed a female employee’s genitals and forced her to kiss him, a court would probably consider that illegal sexual harassment, even if it happened only once. Some other cases have been decided similarly. Here are a few.

Owner Allegedly Says He Grabbed Female Employee Because She’s “One of the Guys”

Offensive touching as sexual harassment

In a recent case filed in state court in Dallas, a store employee alleged that her boss, Phil Romano, sexually harassed her based on a single incident, reported the Dallas Morning News. Phil Romano owns Eatzi’s Market and Bakery and is the founder of Macaroni Grill and Fuddruckers.

Ichel Cook, an assistant manager at the Oak Lawn, Texas market, sued her employer seeking at least $1 million in damages. She alleged that Romano walked behind her during a management meeting in April and “inappropriately grabbed her buttocks with a grin on his face.” The situation was caught on store cameras, according to the lawsuit.

The plaintiff told a local TV station, WFAA, that Romano grabbed her, laughed, took a few steps, stopped, turned around, and stared at her. The lawsuit states she became “mortified” and turned away so the incident would not escalate. Romano later confronted her to discuss what happened, telling her he thought of her as “one of the guys” and did not think his act would upset her.

Cook continued to work for Romano, telling WFAA that she needed the job to support herself and her two children. As part of the lawsuit, she sought a restraining order preventing Romano from communicating with her about the incident. The court denied that part of the lawsuit. Her goal in the lawsuit is for her boss “to understand that this is not acceptable and there are consequences to actions. And I don’t want this to happen to anyone else,” Cook said.

Romano’s attorney stated that he could not discuss the details of the case but promised to have the case dismissed.

Sexual Assault by a Fellow Employee as Sexual Harassment

Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical actions of a sexual nature. There’s a sliding scale when it comes to words and actions of alleged harassers. The less severe, the more frequent they must be; the more serious, the fewer there must be.

Occasional or insensitive jokes may not rise to the level of violating the law, but conduct seen as intimidating, frequent, or severe enough to create a hostile or offensive work environment should be considered sexual harassment. This type of incident, where there is alleged grabbing of the plaintiff’s body followed by staring, should be considered unlawful.

If one incident is alleged, it needs to be outrageous to be sufficient. One example is a 2014 case in federal court in New York: D’Annunzio v. Ayken, Inc. In this case, the judge granted the plaintiffs’ summary judgment motion on their federal Title VII and state law sexual harassment claims against defendant Ayken, Inc. The judge found the plaintiffs’ evidence so strong that a trial was not necessary, which is highly unusual.

The plaintiffs were three sisters who worked at Ayhan’s Fish Kebab Restaurant. One of the defendants, Dario Gomez, was the restaurant’s manager, responsible for addressing employee complaints and stopping inappropriate behavior. The company’s employee handbook described and prohibited sexual harassment. It also required Gomez to report sexual harassment to Ayken’s human resources manager and management and to investigate any complaint. Gomez never did so.

Gomez hired Juan Pablo Orellano as a dishwasher without calling any references or conducting a background check. The plaintiff, Lauren D’Annunzio, alleged that Orellano sexually assaulted her in the restaurant. He was arrested, pled guilty to attempted sexual abuse in the first degree, and was deported. Lauren and her fellow plaintiffs and sisters, Gabrielle and Ashley, alleged many other sexual comments, lewd gestures, slaps on the buttocks, and other offensive touching by male kitchen staff. The plaintiffs claimed they complained to Gomez but he did not address their complaints.

The court found that the plaintiffs produced “overwhelming evidence that Defendant Ayken created a hostile work environment” in violation of Title VII and “the outrageous actions of the Defendant and its employees were simply too gross to ignore.” The sexual abuse of Lauren by Orellano, in and of itself, was seen as showing an objectively hostile work environment.

Single Public, Profane, Humiliating Verbal Attack Seen As Sexual Harassment

In 2000, the U.S. Court of Appeals for the Second Circuit overturned the trial court’s dismissal of a female fire lieutenant’s sexual harassment claim based on one incident. In Howley v. Town of Stratford, the trial court reasoned that a single incident of verbal abuse was not enough to violate Title VII. The appellate court disagreed:

Holdsworth (a defendant) did not simply make a few offensive comments; nor did he air his views in private; nor were his comments merely obscene without an apparent connection to Howley’s ability to perform her job. Although Holdsworth made his obscene comments only on one occasion, the evidence is that he did so at length, loudly, and in a large group in which Howley was the only female and many of the men were her subordinates.  And his verbal assault included charges that Howley had gained her office of lieutenant only by performing fellatio. It cannot be concluded as a matter of law that no rational juror could view such a tirade as humiliating and resulting in an intolerable alteration of Howley’s working conditions: In an occupation whose success in preserving life and property often depends on firefighters’ unquestioning execution of line-of-command orders in emergency situations, the fomenting of gender-based skepticism as to the competence of a commanding officer may easily have the effect, among others, of diminishing the respect accorded the officer by subordinates and thereby impairing her ability to lead in the life-threatening circumstances often faced by firefighters.

Summing It Up

Harassing actions and words generally need to be repeated—frequently—to be considered sufficiently severe to change the conditions of employment and create an actionable claim of sexual harassment. That’s a general rule with exceptions.

  • If there is a single incident or only a few instances of harassing behavior, sexual harassment can still exist.
  • However, these incidents need to be especially egregious, blatant, and humiliating.
  • A single incident of touching is likely enough to tip the scales in the plaintiff’s favor.

If you believe that you have been sexually harassed at your workplace, contact our office so we can talk about what is going on at work, about how the law may apply, and about your best options for protecting your rights and interests.

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