Sexual harassment cases typically involve male supervisors and co-workers creating a hostile work environment for women. Sometimes, the female supervisor is the antagonist. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), however, the Supreme Court recognized that same-sex harassment may also violate Title VII of the Civil Rights Act of 1964, which requires the employer to take prompt and effective remedial measures in the face of gender-based harassment. A recent U.S. Court of Appeals for the Second Circuit case fleshes out the parameters of Oncale, holding that a jury could find that a female supervisor created a hostile work environment in touching the breasts of a female subordinate three times over a five-month period.
Decided on May 4, 2012, Redd v. New York State Division of Parole, F.3d, 2012 U.S. App. LEXIS 9194 (2d Cir. May 4, 2012), resolves two questions pertinent to sexual harassment cases. First: how much offensive contact must a female employee endure before the work environment becomes hostile under Title VII, triggering the employer’s responsibility to institute prompt remedial measures? This question is common to sexual harassment cases. The second question: When is the harassment on the basis of gender, as opposed to ordinary socializing in the workplace? In Oncale the Supreme Court held that ordinary socializing, such as “male-on-male horseplay or intersexual flirtation,” is non-actionable under Title VII.
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