Recently, in Smith v. Rock-Tenn Services, Inc., an employer argued that what the plaintiff-employee called sexual harassment was really only "horseplay" among co-workers and therefore of no legal consequence.  This case is unusual in that it is a same-sex sexual harassment case, meaning male on male.  A jury had awarded the plaintiff more than $300,000 at trial in damages.  

The appeals court, the Sixth Circuit, upheld the jury's verdict completely and gave little weight to the employer's "horseplay" argument:

"Horseplay" was much discussed at trial, and the jury apparently found that pinching and slapping someone on the buttocks or grinding one's pelvis into another's behind goes far beyond horseplay.

The rule here is simple: it is reasonable for a jury to find that pinching and slapping someone on the buttocks or grinding one's pelvis into another's behind his sexual harassment, rather than mere "horseplay." However, keep in mind, it could work the other way to: the appeals court here is required to defer to the jury's finding, a finding which rejected the employer's rather implausible "horseplay" argument.

What would constitute a hostile work environment based on sexual harassment?

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination cases; contact human 859-254-7076.

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