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Context Is Everything In Harassment

The First Circuit Court of Appeals recently emphasized that seemingly innocuous comments may rise to sexual harassment depending on the context.

Xiaoyan Tang, a Chinese woman, worked for the Commercial Real Estate Group of Citizens Bank. She wanted to transfer to the Technology Banking Group. Her interview was with David Nackley. Mr. Nackley had arranged for them to meet at what Ms. Tang referred to as “a popular dating spot.” She recalled that the interview focused on personal matters; that Mr. Nackley expressed his view that Asian women were obedient; discussed the hiring of two Thai au-pairs; brought up swimsuits and Ms. Tang’s dating life. Mr. Nackley also allegedly wrote the word “assume” and stated that it could be broken into “ass,” “u,” and “me,” gestured towards her private area, motioned that the two could combine their “asses” with coupling motions. Following this meeting, Mr. Nackley continued to discuss his Thai au pairs and their swimming attire as well leering at Ms. Tang and reiterating his belief that Asian women were obedient many times. Ms. Tang contended that Mr. Nackley began to retaliate against her once he realized she was not going to respond to his advances. She was ultimately terminated for purported performance issues.

Commercial Real Estate Group sought to dismiss Ms. Tang’s claims as not amounting to sexual harassment. The First Circuit Court of Appeals upheld Ms. Tang’s right to proceed on sexual harassment noting that, “Title VII requires no magic words to convert a verbal exchange in to the stuff of sexual harassment…The context in which something is said may be just as important as what is said.” Contextually, all of the comments in the same conversations took on a sexually suggestive tone. While there were a limited number of incidents, the “cumulative evidence” was sufficient to meet the standard of severe or pervasive.