Horeseplay or Sexual Harassment?

It takes more than an allegation of horseplay to establish sexual harassment, but sometimes, it’s difficult to distinguish between the two. In Cross v. Prairie Meadows Racetrack & Casino, Inc., the Eighth Circuit Court of Appeals considered whether alleged conduct was horseplay or sexual harassment.

A female employee claimed that a male co-worker did four things:(1) pulled her ponytail, (2) brushed the back of his hand across her chest to wipe something off her shirt, (3) told her he wanted to be more than just friends, and (4) became angry when she rebuffed his overture. Company policy required any supervisor to whom sexual harassment was reported to go to HR for an investigation. When the female complained about the first three incidents,  the supervisor took steps to deal with them on his own. After the fourth complaint, the supervisor took everything to HR.

HR investigated and suspended the male co-worker. He was later terminated for violating the employer’s workplace violence policy for having threatened another employee. The female employee quit and filed a sexual harassment lawsuit. She relied on the four incidents above to support her claim.  She also relied on the employer’s failure to follow its own sexual harassment policy.

In dismissing the lawsuit, the Eighth Circuit found that the incidents in question, having occurred over a two-year period of time, weren’t severe enough to constitute sexual harassment. There was also evidence that the female employee regularly tripped and slapped the male co-worker . The court ruled that the conduct in question amounted to horseplay, not sexual harassment.

Notwithstanding the ruling in this case, it’s important that an employer always follow its sexual harassment policy. It’s important that an employer stop horseplay when it occurs. It’s important to stop any unprofessional conduct, because it can lead to a lawsuit. And even if you win it, you will spend a lot of money doing so.