It is football season, so apparently it is time to revisit the issue of the workplace buttocks slap. Justice Scalia noted in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), when discussing whether an employee might find certain workplace behavior “objectionably offensive,” that a professional football player would not be embarrassed or harassed if his coach smacks him on the buttocks as he heads out onto the field. This same action, however, “would reasonably be experienced as abusive by the coach’s secretary, (male or female) back at the office.”
Apparently not everyone got that memo. In Williams v. Ocean Beach Club, No. 2:11cv639 (E.D. Va. Sept. 25, 2102), the district court dismissed the plaintiff’s claim of retaliatory discharge that started when a boss of a time share company, Robert Griffin, slapped female employee Sandra Williams on the buttocks “apparently in celebration of her closing a particularly difficult sale.” Williams complained that she was offended and embarrassed by this slap. She said that she did not think it was sexual, but she also did not think Griffin would have slapped a guy.
Williams was fired a couple of months later for attendance problems. Granting the employer’s motion for summary judgment, the court held that the internal complaint by Williams was not protected activity because the single, isolated incident complained of was not sexual harassment protected by Title VII. Even if it were, however, the court found that Williams had been fired for legitimate reasons, namely her poor attendance. Williams could not establish that this reason was a pretext for retaliation for her engaging in any protected activity.
The take away here? First, not every offensive workplace act is actionable harassment, so do not make a federal case out of it. But second, and more importantly, inappropriate behavior – particularly touching at work – is, well, INAPPROPRIATE. The rules seem simple enough: do not touch at work. And, in particular, no buttocks slaps. Even the replacement refs would know that.