A supervisor touches a subordinate’s butt, continually makes comments on his appearance and asks him out for drinks. Seems like a pretty solid case of sexual harassment, right? 

Not always, ruled the federal 10th Circuit Court of Appeals.

When is it NOT harassment? When the actions fail to become so severe or pervasive that they end up altering the individuals’s conditions of employment.

His sales fell: ‘But it wasn’t my fault’

Bryan McElroy worked in sales for American Family Insurance. He claimed his supervisor, Tony Grilz, touched his back and butt on multiple occasions, complimented his appearance and cologne, and asked him out for drinks during a company event.

McElroy was eventually terminated, and the company said it was for failing to hit his sales goals.

McElroy admitted his performance had dropped off, but claimed it was because of the actions of Grilz. He then filed a sexual harassment suit.

The company fought to get his lawsuit dismissed on summary judgment. It succeeded.

Reason: The court said McElroy failed to show the conditions of his employment had changed in any way – or become downright abusive – due to the behavior of Grilz.

The district court mentioned in its ruling that “some of Grilz’s conduct could make many people uncomfortable.” But the appeals court retorted that “McElroy cites no authority suggesting that behavior capable of causing mere discomfort is necessarily capable of  ‘alter[ing] the conditions of [a] victim’s employment and creat[ing] an abusive working environment.’”

In other words, the 10th Circuit said, behavior that leads only to “bruised or wounded feelings” does not a hostile work environment make. Case closed.

Cite: McElroy v. American Family Insurance. 

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