The Second Circuit Court of Appeals recently ruled in Lewis v. City of Norwalk (2d Cir. 2014) that a supervisor's occasional "leering" and "licking of his lips" at a subordinate employee was insufficiently severe and too sporadic to create a hostile work environment.
The subordinate complained that beginning in 2006, his supervisor, who was openly gay, "leered" at him and "made gestures with his tongue." Although it began in 2006 and went on for years thereafter, it became merely sporadic over time.
Eventually, the employee was up for a performance review and his review reflected unacceptable work performance. He was offered to resign with a severance package, or the employer would fire him. He refused to resign--so he was fired. The employee then commenced suit for sexual harassment against his supervisor and former employer. His claims, however, were dismissed by the federal district court and, on appeal to the Second Circuit, he lost again, the Court holding that the supervisor's conduct was insufficiently severe and too sporadic to constitute sexual harassment.
This case is a reminder that in New York what constitutes conduct that is sufficiently "severe" in the context of a claim of sexual harassment must reach a very high threshold.
