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“Short Shorts” Request Not Sexual Harassment

Posted by Frank Steinberg | Sep 22, 2008 | 0 Comments

Last week I had the pleasure of speaking to a local business group about employment law.  The subject of sexual harassment arose, and we spent a few minutes talking about the kinds of conduct that do and do not constitute harassment in the legal — as opposed to the colloquial — sense.

This morning I ran across Virginia Polytechnic Institute v. Quesenberry, a case from the Virginia Court of Appeals that helps to illustrates the difference.

The plaintiff was a college employee who served as a volunteer coach for a non-profit youth boxing club.  His group wanted to create a promotional photo calendar of attractive young women in boxing poses.  He asked a female co-worker to pose in "short shorts" or a bathing suit.  After she complained to the employer, the volunteer coach was fired for alleged violation of  the university's sexual harassment policy. 

So was the young woman the victim of sexual harassment in the colloquial sense?  Based upon her reaction to the request, one might argue that she was harassed.  But under the legal definition of sexual harassment, she was not.  Here's why.

In court, the coach argued that he did not violate either the university's policy or any sexual harassment law since he engaged in no conduct that a reasonable person would consider to be sexual in nature.  The court agreed, finding as a matter of law that the coach did not violate university policy.

Quesenberry reminds us of three general rules: (1) sexual harassment cases are fact-sensitive, and broad-brush analysis usually will not help employers to resolve them; (2) a defendant's conduct will always be judged by an objective or "reasonable person" standard; and (3) claims of a sexually hostile work environment typically require an accumulation of unlawful conduct over a period of time. 

We note, as a caution to New Jersey employers, that New Jersey case law suggests that a single instance of harassment, if sufficiently severe, might be be found to create a hostile work environment.  But this situation would clearly be the exception rather than the rule.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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