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Feb 23, 2016

Male-on-male grabbing is sexual harassment, not horseplay

Harassment & Discrimination 

Multiple incidents of sexual harassment by one male employee toward another in the workplace led to a $300,000 verdict against their employer.

Multiple incidents of sexual harassment by one male employee toward another in the workplace led to a $300,000 verdict against their employer. First, the male plaintiff in the case saw the perpetrator come up behind a male coworker and grab his rear end. Then the perpetrator turned his attention to the plaintiff, slapping him on the buttocks and later squeezing his rear end. Each time the employee demanded that the conduct stop. About a month later, the same offender grabbed the employee from behind on the hips and ground his genitals into the employee’s backside.

Soon after this last incident, the employee reported the conduct to his supervisor. Incidentally, the company had a policy which required employees to confront their harasser first before being allowed to make a complaint of sexual harassment to management. Upon reporting the incidents, the employee was told that nothing could be done until the operations manager returned from vacation about 10 days later. The company did not take steps to immediately begin an investigation. It also required the employee to continue to work alongside the harasser, which caused him extreme stress.

At trial, the employer argued that the conduct was not sexual harassment, but instead was merely “male-on-male horseplay.” The court disagreed, stating, “pinching and slapping someone on the buttocks or grinding one’s pelvis into another’s behind goes far beyond horseplay” (Smith v. Rock-Tenn Services, Inc., 6th Cir, Feb. 2016).

Tips: Employers who view vulgar and aggressive behavior as normal “horseplay” do so at substantial risk. Supervisors who condone or acquiesce to such conduct are expensive time bombs. Employers should never require employees to confront their harasser before being allowed to make complaints of sexual harassment. For more information, check out these Vigilant Legal Guides: “At a Glance: Workplace Harassment” and “Harassment in the Workplace: Avoiding Liability”. If it’s been more than two years since your last company-wide non-harassment training, it’s probably time for a refresher. Contact your Vigilant employment attorney to discuss your training options, or to request help with investigating a complaint of harassment.

For help on this matter and other employment issues learn more about our flat fee employment law advice.

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