Friday, October 26, 2012

Butt Slapping . . . Not Harassment? - COTW #115

This Case of the Week comes to us from Virginia: Williams v. Ocean Beach Club, LLC, 2:11CV639, 2012 WL 4461289 (E.D. Va. Sept. 25, 2012). The plaintiff claimed she was terminated in retaliation for complaining about her supervisor . . . smacking her butt? Yes, smacking her butt.

Now, in order to succeed on a retaliation claim the conduct the employee complained of must be unlawful or the employee must have reasonably believed it was unlawful. Here, the employee argued that the reported butt-slapping was sexual harassment. Surprisingly, the Court disagreed:
On August 28, 2007, while in the office of Gold Key, Williams' supervisor, Robert Griffin, slapped her on the buttocks, apparently in celebration of her closing a particularly difficult sale. Williams had never had any previous difficulties with Griffin. She testified that Griffin had never spoken to her or touched her inappropriately before, nor had she ever witnessed Griffin behaving inappropriately towards others. She also stated that she did not believe the slap was sexual in nature, nor did she believe Griffin was trying to physically harm her. Nonetheless, Williams stated in a note to Gold Key managers that she was offended and embarrassed by the slap, which she also claimed left a “hand print” . . . . The single incident underlying Williams' internal complaint is not so severe or pervasive as to constructively alter the conditions of her employment or create an abusive environment . . . . Because no reasonable juror could conclude the isolated incident Williams complained of was sexual harassment prohibited by Title VII, her internal complaint was not protected activity and she cannot establish the first element of a prima facie case of retaliation.
Case dismissed! I guess a little butt-slapping is okay, or at least lawful, under certain circumstances. If you find this result unbelievable, I should note that the Court also ruled that the claim would have been dismissed for an alternate reason: the evidence established that the employee was terminated for repeated unexcused absences.

Now, raise your hand if you immediately thought of this episode from Friends.

HT: Lexology - One Free Slap on the Buttocks? via Eric Meyer on Twitter.