Thanks to my friend Judy Greenwald of Business Insurance who brought to my attention an interesting decision this week from a federal appeals court in Boston.

A female employee of a university and her supervisor had a weeklong “out-of-town” affair, after which when they returned home, “embarrassed by the fling, [she] rebuffed him.”  Some time later he propositioned her, and “grabbed her breast and made sexually suggestive grunting noises. [She] was disgusted but said nothing for fear of losing her job. "    

After she complained to the university of sexual harassment, an investigator came to the conclusion that she was not credible as to the alleged sexual incidents, and that even if they had taken place her “own conduct, namely her voluntarily engaging in off-color banter of a sexual nature” with her alleged harasser,  “showed that his conduct was not unwelcome.” 

Moreover, "[t]he general consensus [at work] was that the two appeared to have a close and trusting relationship, and their interactions often included off-color remarks and jokes of a sexual nature, many times to the discomfit of some.” She was heard to say to her boss, for example,  “’what will you pay to spend the night with me’ in a joking manner.”    After she quit her job she filed a Title VII case. 

The appeals court (reversing the trial court), shot down the university’s argument. It held that the argument “does little to convince.  We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. … There is no evidence that [she] encouraged or invited [her boss] to grab her breasts, and she indicated during the investigation that she was disgusted and bothered by him doing so.”