Hugging, Comments On Perfume And Appearance, And Sexual Hand Gestures Do Not Amount To Harassment

Since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), female employees have found it almost impossible to bring sexual harassment lawsuits. The law has evolved in such a fashion that only conduct of the most severe and repetitive nature now qualifies as sexual harassment. A recent case involving a fire department in Michigan illustrates how far the law has evolved in the last ten years.

Dodie Hensman once worked as a dispatcher and clerk for the City of Riverview, Michigan Fire Department. On September 19, 2005, Richard Batchelder became Fire Chief at Riverview after serving 25 years with the Shelby Township Fire Department. For six weeks, Hensman endured what she described as sexual harassment on the part of Batchelder. Hensman then filed a workers’ compensation claim alleging stress, and raised the issue of sexual harassment with the City. Eventually, Hensman filed a sexual harassment lawsuit against the City.

A federal trial court dismissed the sexual harassment claim. The Court recited Hensman’s “only complaints as being that Batchelder (1) called her by the wrong name; (2) kept the door closed when he met with her in his office; (3) walked too closely behind her; (4) would sniff and ask what fragrance she was wearing; (5) commented about noticing her blue eyes; (6) told her she looked ‘cute in her jammies’ when, after locking himself out of the office after an evening meeting, came to her house at night to get her key, and brought her flowers and bagels the next day to apologize for waking her up; (7) twice told her she was strong, aggressive, and voluptuous like his wife and mother-in-law; (8) made a gesture of large breasts when he said the word ‘voluptuous’; (9) hugged her on three occasions; and (10) grabbed her by the arm when she was storming out of the fire station on her last day on the job.”

The Court found that this conduct was insufficient to even state a claim for sexual harassment. The Court held that “there is nothing inherently sexual or anti-female about calling someone by the wrong name, keeping an office door closed while meeting with a subordinate, walking too closely behind someone, sniffing and asking what fragrance someone was wearing, noticing someone’s eyes, or telling someone that she looked cute in what she was wearing. Such allegations of non-sexual harassment are insufficient to sustain a sexually hostile work environment claim.”

As to the rest of Hensman’s allegations – the hugging, the “voluptuous” comment, and the hand gesture indicating large breasts – the Court found that the allegations did not amount to severe or pervasive sexually harassing conduct.

Hensman v. City of Riverview, 2008 WL 821940 (E.D.Mich. 2008).

This article appears in the August 2008 issue