Fifth Circuit: Getting Groped by a Supervisor Isn't Harassment If it Only Happens Once

In Paul v. Northrop Grumman Ship Systems, the Fifth Circuit Court of Appeals decides that a jury need not be bothered with a sexual harassment case because, after all, the supervisor only groped the the plaintiff once

Here is the Court's description of the relevant facts of the case (which for the purposes of this summary judgment motion must be accepted as true): 

Paul [the plaintiff] alleges that, on that day, Barattini walked up to her until his chest
was touching hers, thus “chesting up” to her breasts in a thirty-second
confrontation. As Paul attempted to separate herself, he stared at her in a
hostile and intimidating manner. Paul then walked away toward a narrow ship
passageway, but Barattini followed her.  He forced his way through the door
ahead of her, and, in doing so, placed his hand on her stomach and ran his arm
around her waist. As he squeezed past her in the passageway, he allegedly
“rubbed his pelvic region across [her] hips and buttocks.” According to Paul, the
incident lasted a total of approximately a minute and a half, and occurred in the
presence of another supervisor who did not intervene.

In response, the employer eventually terminated the supervisor in question.  But that didn't decide the case.  No, the Fifth Circuit decided that there was not question of fact here and that the harassment described was not egregious enough to be actionable as a single event. 

The applicable law states that “To affect a term, condition, or privilege of employment, the harassment must be sufficiently severe OR pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

Interestingly the Court properly cites to the rule and even emphasizes the fact that the "severe or pervasive" element of the test is disjunctive.  Thus harassment need not be pervasive or continuing if it is severe.  The court then gives this plaintiff the boot, holding that as a matter of law, the groping described above was not severe.  Really?

Remember now, the court was not deciding whether Ms. Paul should win at trial.  No, the Court decided that she didn't even have the right to have a trial because they personally didn't believe that one incident of groping and pelvic rubbing was severe. 

So what should we call this new legal standard?  Michael Maslanka calls it the "One-Free-Grope Rule."  He also calls it unfair.  

I agree.