Our local political melodrama over the resignation of the Akron mayor after 28 years and his one-week interim replacement has made national news. The interim mayor resigned yesterday after admitting that he groped a city employee. He said that he inappropriately “turned a goodbye hug into a too-personal encounter” when a city employee he had known for 14 years was wishing him well in his new position as mayor. The employee, he reported, was “appropriately offended” and she filed a complaint with HR.
The question swirling around is whether the incident is legally actionable. Much of the press is calling it sexual harassment. Sexual harassment is “unwelcomed sexual advances” that either is 1) quid pro quo, sexual advances are required for employment or an employment benefit like salary or promotion, or a 2) hostile work environment. Courts have said the conduct generally must be either severe or pervasive. A one-time sexual touching, as opposed to one sexist joke or offensive comment, may sometimes be considered sufficiently severe. See James Concannon, Actionable Acts: "Severe" Conduct in Hostile Work Environment Sexual Harassment Cases. But not always. The City itself likely has no liability here, if, as reported, this is a one-time incident involving this offender. See Joanna Grossman, The First Bite is Free: Employer Liability for Sexual Harassment.
The Ohio criminal conduct also makes actionable “sexual imposition,” sexual contact defined as any touching with the “erogenous zone of another” for the purpose of sexual arousal or gratification — or “gross sexual imposition” if the sexual contact is by force. Ohio Rev. Code 2907.01, .05, .06. It requires that the offender know that the conduct is offensive to the other person, or is “reckless in that regard.”
It might also be a battery, a civil tort of intentional “unwanted contact.”