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Licking Lips and Leering Don’t Establish Hostile Work Environment

By Amanda C. Van Wieren  5/15/2014
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Upholding summary dismissal of a same-sex harassment claim, the 2nd U.S. Circuit Court of Appeals ruled that a supervisor’s periodic leering and licking of his lips were not sufficiently severe or pervasive to create a hostile work environment under Title VII of the 1964 Civil Rights Act.

Former City of Norwalk employee Oswald Lewis alleged that, beginning in 2006, his openly gay supervisor, Thomas Hamilton, “ ‘leered’ at Lewis, looking from his crotch to his head while smiling, and … made gestures with his tongue.” According to Lewis, this conduct occurred multiple times per week in 2006 but “became more sporadic over time, occurring no more than a handful of times in 2008-09.” Lewis also alleged that Hamilton complimented his fashion sense, asked Lewis to work out with him, spoke about his romantic relationship with another man and invited Lewis to drinks with other co-workers.

In May 2010, Lewis met with Hamilton and the city’s director of personnel and labor relations, James Haselkamp, to review his performance evaluation. Like his prior evaluations, Lewis’ 2009-10 evaluation reflected problems with the quality of his work product. During the meeting, Hamilton and Haselkamp offered Lewis the opportunity to resign in exchange for a severance package but stated that if Lewis did not resign, they would initiate a formal removal process.

Lewis refused to resign and instead complained of Hamilton’s conduct pursuant to the city’s sexual harassment policy. Lewis stated that he had not complained to Haselkamp earlier because “Haselkamp had contributed to the hostile work environment by massaging Hamilton’s shoulders during a meeting and stating that he knew how to ‘relieve and relax’ Hamilton.” To eschew any appearance of bias, the city retained an outside law firm to investigate Lewis’ complaints. Fourteen witnesses were interviewed, including Lewis and Hamilton, and the law firm ultimately concluded that Lewis’ allegations were uncorroborated. In July 2010, the city proceeded with the formal removal process and Lewis was terminated for substandard work performance.

Lewis brought suit in the U.S. District Court for the District of Connecticut against Hamilton, Haselkamp and the city for harassment and retaliation, relying on Title VII of the Civil Rights Act of 1964, Section 1983 of the Civil Rights Act of 1871, and the Equal Protection Clause of the 14th Amendment. The district court subsequently granted the defendants’ motion for summary judgment, finding that Lewis’ claims for harassment and retaliation failed as a matter of law.

On appeal, the 2nd Circuit held that the only overtly sexual conduct alleged by Lewis—Hamilton’s licking of his lips and “leering” —was insufficiently severe and too sporadic to establish a hostile work environment. Lewis’ other allegations were “facially sex-neutral incidents” that would not have offended a reasonable person in Lewis’ position and therefore did not rise to the level of sexual harassment. With regard to Lewis’ retaliation claim, the court held that Lewis had failed to prove that he was terminated “because of” his sexual harassment complaint, noting that Lewis’ termination was already “set in motion” before the filing of the complaint. Accordingly, the court affirmed the district court’s ruling dismissing Lewis’ suit.

Lewis v. City of Norwalk, 2nd Cir., No. 13-2485 (April 14, 2014).

Professional Pointer: An employer is not required to abandon a previously contemplated course of disciplinary action if the subject employee makes a last-ditch harassment complaint, as long as that complaint is fully and fairly investigated and the disciplinary action is supported by grounds unrelated to the alleged harassment.

Amanda C. Van Wieren is an associate attorney at the Portland, Ore., office of Ogletree, Deakins.

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