First Circuit Clarifies "Severe or Pervasive" Standard in Hostile Work Environment Claim
1 min read
Feb 27, 2014
The employee was hired as the Area Manager for a national company and began experiencing performance problems almost immediately. She was fired less than a year after beginning her employment and subsequently filed a lawsuit alleging that she was subject to sexual harassment and was terminated in retaliation after reporting the harassment.
The employee appealed from the district court's grant of summary judgment in favor of the employer, alleging that the court erred in finding that no reasonable juror could conclude that (1) the two incidents of harassment were "severe or pervasive enough to create a hostile work environment" and (2) the employee satisfied the but-for standard of alleged adverse action by the employer to support her claim for retaliation.
The First Circuit affirmed the entry of summary judgment regarding the harassment claim, finding that the conduct of the employee's supervisor of putting his arm around her on two separate occasions, although inappropriate physical contact, was "not pervasive by any measure" and thus could not constitute a hostile work environment. In upholding the judgment in favor of the employer on the retaliation claim, the First Circuit noted that the employee's performance problems begin before the two harassing incidents, the complaints about the performance issues came from the clients themselves and not her supervisor, and she admitted to the performance problems. The First Circuit held that, even assuming the employee made a prima facia case of retaliation, the employer met its burden of establishing a "legitimate, non-retaliatory" basis for the termination, i.e. performance issues, and that the employee did not proffer specific facts to allow a fact finder to determine that the reason for her termination was mere pretext.
This decision provides guidance as to evaluating hostile work environment claims predicated on allegations of limited inappropriate physical contact and confirms that documented performance issues may very well defeat a claim for retaliation.
Topics
Featured Insights

Press Release
Oct 5, 2026
Mitchel Chargo Selected to the Seventh Edition of the Global Top 200 Cannabis Lawyers Directory

Consumer Crossroads: Where Financial Services and Litigation Intersect
Oct 2, 2026
Expansive New Commercial Financing Licensing Requirement Signed into Law in California

In The News
Oct 2, 2026
Spencer Kook Explores How AI is Reshaping the Insurance Workforce

In The News
Oct 1, 2026
Jennifer Driscoll Discusses Emerging Antitrust Risks Tied to Social Media Algorithms

Healthcare Alert
Sep 30, 2026
Feeding Better Outcomes: The OIG’s Compliance Roadmap for Food-As-Medicine Programs

Consumer Crossroads: Where Financial Services and Litigation Intersect
Sep 30, 2026
Illinois Supreme Court Delivers a Third Key Win for Mortgage Lenders

In The News
Sep 28, 2026
Carol Rooney and Adam Topel Co-Author Article on Recent Developments in Appellate Advocacy

In The News
Sep 28, 2026
Lucy Wang Discusses New Landmark California Wildfire Insurance Reforms

Event
September 27–29, 2026
Hinshaw Partners Discuss Key Compliance and Litigation Issues at the 2026 MBA Conference



