APPEALS COURT NIPS MALE ON MALE HARASSMENT CLAIMS BASED ON NIPPLE SQUEEZING

Proving yet again that an actionable harassment claim has to be based on a protected characteristic, an appeals court dismissed the claims of a male employee whose male supervisor allegedly squeezed his nipples and the nipples of several male co-workers. The Eight Circuit Court of Appeals gave its sympathy to an employee reasoning that the “alleged behavior—while manifestly inappropriate and obnoxious—is insufficient to show Payne [the supervisor] harbored hostility against men in the workplace.”

The Court pointed to a lack of evidence that the supervisor “pursued a sexual or romantic relationship” with the Plaintiff and a lack of “evidence or reasonable inferences suggesting Payne’s behavior was motivated by sexual desire.” The Court made this holding, despite the Plaintiff’s claim that his supervisor said “This is a form of sexual harassment” during one of the squeezing incidents.

The case demonstrates the challenges of proving same sex harassment claims are based on gender, especially when the harasser is not known to have any sexual desire for the gender of the harassed employee. Had the employee been able to show that his supervisor was in fact interested in men, a different result may have been obtained. The moral of this story is the law does not prohibit supervisors from being mean or nasty to their employees; it only prevents them from discriminating based on protected characteristics or retaliating if the employee is engaged in some form of protected activity. Despite the win for this Defendant, unwanted touching has no place in the workplace.