Finding the Facts - Disciplinary and Harassment Investigation

“Totality of the Circumstances”

Was the conduct severe?

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Physical?

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Threatening?

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Intimidating?

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Humiliating?

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Merely offensive?

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Verbal comments?

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Touching?

Was the conduct pervasive?

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Frequent?

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Isolated?

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Sporadic, over a long period time?

One incident of severe, intense, humiliating conduct may be sufficient in and of itself to constitute harassment, particularly if the conduct involves physical touching. 199 For example, harassment was found based upon one incident in which the harasser talked to the complainant about sexual activities and touched her in an offensive manner while they were inside a vehicle from which she could not escape. 200 Likewise, harassment may occur in quid pro quo cases based upon one incident if a sexual advance is linked to the granting or denial of employment benefits. 201 In contrast, a single or isolated incident of offensive conduct or remarks generally does not create an abusive environment. “Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII.” 202

Case Studies The Ninth Circuit held that a single encounter in which an employee touched a female employee’s stomach, commented on her softness and sexiness, forced his hand underneath her sweater and fondled her bare breast did not constitute harassment. The Ninth Court concluded that “an isolated incident of harassment . . . will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship.” 203 Moreover, Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” 204 Thus, the EEOC has opined that a hostile work environment would not be created by an alleged harasser who asks a co- worker to join several other co-workers for a regularly scheduled social

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 121