Dive Brief:

• An emergency medical technician (EMT) who alleged five inappropriate comments over a four-month period was unable to establish a claim of sexual harassment, the 11th U.S. Circuit Court of Appeals held (Allen v. Ambu-Stat, LLC, No. 18-10640 (11th Cir. Jan. 16, 2020)).
• The comments about the EMT's body and romantic life were made by her supervisor, a co-owner of the company. The remarks could "hardly be described as frequent," however, the 11th Circuit said in upholding a lower court's summary judgment for the employer. Additionally, it appeared they were said in a joking manner, and the EMT admitted she was friends outside of work with the owner.
• The comments were not pervasive, the court concluded. "Plainly, [the owner] engaged in unsavory and unpleasant conduct. However, as we have emphasized, this type of boorish behavior, with this kind of frequency, is insufficient to constitute pervasiveness for a sexual harassment action under Title VII [of the Civil Rights Act of 1964]."

Dive Insight:

The Allen court found that the allegedly harassing comments were infrequent, and made between friends, but the alleged facts show why it's best for employers to avoid ambiguous situations like this in the first place.

The U.S. Equal Employment Opportunity Commission (EEOC) has said that "slights, annoyances, and isolated incidents (unless extremely serious)" are not illegal, and a workplace must be truly "intimidating, hostile, or offensive to reasonable people" for an employer to be liable for a hostile work environment.  

One court ruled that a few incidents over the span of multiple years was not enough to substantiate an employee's claims of hostile work environment, disparate treatment, retaliation and constructive discharge. But a different court concluded that a plaintiff isn't required to show that a workplace is "hellish." Another court allowed an age bias claim to proceed after a 58-year-old employee was allegedly called "grandma" and "little old lady" by her supervisor.

Experts say prevention is better than after-the-fact remediation when it comes to allegations of retaliation, bias or harassment. But there are no perfect workplaces, so attorneys have recommended that complaints be investigated promptly and taken seriously by HR — ​even if the alleged harasser says he or she was "just kidding." Brushing off complaints can encourage more inappropriate behavior, they said, eventually paving the way for a lawsuit.