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Must a physical advance be sexual to be sexual harassment?

Most people realize that actions like grabbing someone's genitals, fondling someone's breast or forcing a kiss on someone's lips are inherently sexual. But does a physical advance on someone have to be inherently sexual in nature in order to constitute sexual harassment?

No, it doesn't. Even an action that could in no way be described as "alluring" can form the basis of a sexual harassment claim. So can non-sexual physical contact that merely serves as a pretext for getting the victim in closer.

An appeals court finally settled that question when an employee filed a quid pro quo sexual harassment claim against her employer after her direct supervisor made unwanted "personal grooming" requests of her -- during which he made statements that made it clear that he had the power to either have her fired or help her keep her job.

The lower court had rejected the employee's claim because the supervisor's request, while intimate, was definitely not the most sexually overt or enticing thing he could have done: He called the female employee into his office on the pretext of having her pluck an ingrown hair out of his chin.

When she declined to assist him, he put tweezers in her hand and reminded her that he could end her employment there. When she went to leave, he put his arms on her shoulder and neck and kissed her on the side of the face and forehead without further mention of her job. She was fired a few weeks later.

It was the third instance of unwanted contact from him. The employee had reported the prior two to her employer, with no effect.

The lower court found that, since there was no overt request for sexual favors in exchange for keeping her job, no quid pro quo case existed. The higher court reversed the ruling, pointing out that a reasonable jury could conclude that the rather bizarre grooming request was just designed to bring the victim in close enough for her harasser to act and that the mention of her job security was enough to establish the quid pro quo case.

Anyone who believes that he or she is being pressed for physical favors in exchange for job security, regardless of whether those acts are explicitly sexual or not, may have a claim for sexual harassment. An attorney can provide you with more information on your legal options.

Source: Workplace Fairness, "Sexual Harassment - Legal Standards," accessed Feb. 05, 2017

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