A secretary for a Massachusetts town who alleged that her boss frequently stared at her body won reversal of a summary judgment dismissing her case.

The U.S. Court of Appeals for the First Circuit found that staring alone could constitute triable jury issues of sexual harassment.  It reversed the lower court’s decision, finding that its application of the hostile work environment standard was too restrictive.

The court emphasized that sexual harassment requires a case-by-case factual assessment.  It found that a reasonable jury could conclude that the town administrator’s allegedly perpetual ogling of the secretary’s chest even after she complained could create a sexually hostile work environment — even in the absence of any physical contact, sexual propositions, racy remarks or other types of harassing behavior.

The court remarked that the fact that many harassment cases include “behavior like fondling, come-ons, and lewd remarks” doesn’t mean that such conduct is required for a Title VII claim.  While such actions “serve as instructive examples of actionable sexual harassment,” the court found that “they do not suggest that harassing conduct of a different kind or lesser degree will necessarily fall short of that standard.”

The case offers lots of interesting angles for the jury to consider.  The employer contends that the town administrator wasn’t ogling his secretary but instead suffered from an eye ailment — alternating intermittent exotropia — a “condition in which one eye or the other will lose fixation and drift outward.”  The administrator also contends that he suffered from “acute stress disorder” brought on by his secretary’s allegedly false allegations.

The lesson?  Don’t assume that sexual harassment has to include physical contact, propositions or racy remarks to be actionable.  This isn’t the first time a court has concluded that staring/leering/ogling alone could constitute harassment.