Have you been subject to some pretty disgusting behavior by a co-worker in your workplace? If it is sexual in nature, and has created a hostile work environment, then you may have a case under Title VII. Or you may not, if the conduct is not sexual enough. Does leering qualify?
In Lewis v. City of Norwalk, a summary order decided on April 14, Oswald Lewis was the City of Norwalk's Director of Management and Budget. His openly gay supervisor, Hamilton, began making advances on him. The court summarized the facts as follows: "Lewis alleges that soon after he began working for the City, Hamilton, who is openly gay, began making sexual advances toward him. Specifically, Hamilton is alleged to have "leered" at Lewis, looking from his crotch to his head while smiling, and to have made gestures with his tongue, which Lewis found "irritating." Lewis claims that this conduct occurred a couple of times a week in the beginning but became more sporadic over time, occurring no more than a handful of times in 2008-09. Lewis's other allegations are that Hamilton complimented his taste in clothing; invited Lewis to join his gym so that they could work out together; invited Lewis out for drinks; and disclosed to Lewis that he was lonely in his current relationship, and asked for help dealing with his loneliness. Once, when Lewis was in his office, Hamilton banged on the door and, when Lewis told him not to come in because he was changing into his jogging clothes, Hamilton waited outside until Lewis came out and then spoke with him excitedly. Lewis asserts in his brief that Hamilton's conduct negatively affected his work performance."
The court threw out the case. Why? The conduct was not sexual enough. According to the court "The only arguably overt sexual conduct was Hamilton's alleged licking of his lips and so-called "leering," which, by Lewis's own admission occurred only sporadically over time, and no more than a few times a year by mid-2009. Even assuming the conduct occurring prior to July 2009 is not time barred, which it may be under Title VII, the alleged "leering" is insufficiently severe or pervasive to qualify as having created a hostile work environment. The other "facially sex-neutral incidents"— invitations to join Hamilton's gym, invitations to have drinks with other co-workers, and discussions about Hamilton's personal life—even if they made Lewis subjectively uncomfortable, do not, under a 'totality of the circumstances' inquiry, 'create . . . an environment that a reasonable person would find hostile or abusive . . . .'
The takeaway? If you think you are in a hostile work environment because of some questionable behavior on the part of your co-workers or supervisor, keep track of the incidents as they occur. They will need to be severe, pervasive, and overtly sexual to create a successful claim under Title VII.