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Employer Law Report

Slap Happy Celebration of Work Accomplishment Not Severe or Pervasive Enough for Sexual Harassment or Retaliation Claim

Posted in EEO, Workforce Strategies

Sandra Williams was a sales associate for a timeshare company in Virginia Beach. After the completion of a difficult sale, Williams’s supervisor slapped her on the buttocks. Williams reported the slap to management and complained that it offended her and embarrassed her. Upper management directed human resources to investigate. After the investigation, the Company concluded that the supervisor’s conduct was inappropriate but not a violation of the Company’s harassment policy. It was the only such incident involving the supervisor, and even Williams acknowledged that it was not sexual in nature. As a result, the supervisor was admonished about the behavior.

Just prior to the complaint, the Company had begun investigating Williams’s attendance. Two months later, Williams failed to report for work or call in to report her absences as required by the Company’s policy, and as a result, the Company terminated her. Williams sued in federal court in Virginia alleging that her termination was in retaliation for her complaint about the celebratory slap.

The Court first concluded that the slap was not severe or pervasive enough to constitute a hostile work environment. Second, the Court concluded that the complaint was not protected activity and could not support a retaliation claim, even though the employer internally investigated the complaint. The Court held that, even when a complaint results in “intensive internal scrutiny,” it is not automatically protected activity under the law, especially where, as here, the complaining employee did not believe the behavior was sexual in nature. Because no reasonable person would believe that one incident was sufficient to establish a sexual harassment claim, the internal complaint was not protected activity, and Williams’s claim for retaliation failed. In addition, the Court noted that Williams’s claim failed because she could not dispute that she failed to report for work or call in and did not present a doctor’s excuse for the absences until after her termination.

Similar to the holding in this case, the Sixth Circuit Court of Appeals, which has jurisdiction over Ohio employers, has held that internal complaints that do not specifically complain about harassing behavior being racial or sexual in nature are not protected activity, even if internally investigated. Batuyong v. Gates, 337 Fed.Appx. 451 (6th Cir. July 06, 2009).

What are the key takeaways? This case reiterates the well-established principle that one isolated incident is not sufficient to establish a hostile work environment based on sex. More importantly, employers can take some comfort that by investigating complaints of alleged inappropriate behavior in good faith does not automatically turn the complaint into protected activity.

The case is Williams v. Ocean Beach Club LLC, No. 2:11-cv-639 (E.D. Va. Sept. 25, 2012).