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April 18, 2008
Wandering Eyes, or Sexual Harassment?

A Massachusetts secretary to her town administrator complained repeatedly that the administrator was always staring at her chest. She took to holding pieces of paper in front of her when she left her desk. And, she complained three times to town officials. Each time, a different lawyer investigated her complaint, but all three essentially exonerated the administrator. So she sued.

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What happened. A woman began in September 1999 as secretary to Grafton's town administrator. She and other clerical employees noted how often the administrator's eyes drifted to their chests, which made them uncomfortable. On her first formal complaint of sexual harassment in 2001, she was sent to the attorney who represented the town. He made no decision, but only reported her complaint to the Board of Selectmen. Her boss's staring was less frequent for a few weeks, she said, but then resumed at its former level. On her next complaint, the town's labor lawyer was assigned to investigate, but she didn't trust him. Based only on an interview with the administrator, he reported her allegations were unsupported.

Her third complaint brought in an outside lawyer. She interviewed the administrator and the secretary, asking her to imitate the administrator's eye movements. Then she suggested there might be something wrong with his eyes, leading him to involuntarily glance away from the face of the person to whom he was talking. An ophthalmologist diagnosed the administrator with "alternating intermittent exotropia," or wandering eyes. The lawyer admitted that the administrator often glanced at women's chests but termed it neither staring nor leering, as the secretary had charged. Then the administrator had a heart attack and, on his return, submitted doctors' notes that he was overstressed and couldn't work with the secretary any more.

The town transferred her to a less desirable job--one that she'd earlier rejected--and she sued for harassment and retaliation. A federal district judge dismissed her suit, and she appealed to the 1st Circuit, which covers Maine, Massachusetts, New Hampshire, and Rhode Island.

What the court said. Appellate judges did not agree with the lower court. Being stared at could be harassment, even without comments or touches, they said. And the town's reasons for transferring the woman to an undesirable job might have been pretexts for retaliation. So a jury will need to hear her case and decide. Billings v. Town of Grafton et al., U.S. Court of Appeals for the 1st Circuit, No. 06-2145 (2/7/08).

Point to remember: Told of an inappropriate, sexually tinged "joke" the administrator made at one point, judges perhaps suspected that many of his glances were intentional.

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