New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking For Dates is Not Sexual Harassment

On August 4, 2008, the New Jersey Supreme Court ruled that repeatedly asking a woman out on a date, even when she repeatedly declines the invitations, does not constitute unlawful sexual harassment. More specifically, New Jersey’s highest Court ruled the harassment alleged was not severe or frequent enough to be legally actionable.

The case, Godfrey v. Princeton Theological Seminary, involved Beth Godfrey and Jennifer Kile, two graduate students in their mid twenties, who were repeatedly asked out on dates by William Miller, a tenant of the Seminary who was in his upper sixties. Godrey and Kile sued the Princeton Theological Seminary for permitting a sexually hostile environment.

Since Godfrey and Kile were not employees of the Seminary, they sued under a section of the New Jersey Law Against Discrimination that states that “[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression.” Among other things, that section prohibits sexual harassment in many public places. Godfrey and Kile also sued under Title IX of the Education Amendments of 1972, and for breach of contract.

Godfrey’s Allegations

Godfrey first met Miller at the Campus Cafeteria in the fall of 2000. In December 2000, he asked her to go to a concert with her. When she turned him down, Miller asked her out again, and Godfrey again said no. When Godfrey saw Miller on campus later that evening, she actively avoided him.

In January 2001, Godfrey received a package from Miller that enclosed a card which detailed Miler’s personal life and a package of Winnie the Pooh note cards, both of which Godfrey discarded. However, she sent him a brief thank you note for the gift.

That summer, Miller saw Godfrey and invited her out to lunch. When Godfrey declined the invitation, Miller asked if he could take her out some other day. Godfrey again declined, and told Miller that she would only have lunch with him if they were at a crowded table in the Seminary’s cafeteria.

The following weekend, Miller left Godfrey a series of telephone messages, the first asking her out to lunch, the next two inviting her to go to church and lunch, and another inviting her to a picnic and a concert. When Godfrey did not return any of his messages, Miller left her another message stating that we was angry that she had not returned his calls, but inviting her to a picnic with him. Godfrey did not respond to any of Miller’s telephone messages.

Godfrey then met with the Seminary’s Student Relations Director, Kathy Cook Davis, and told her about Miller’s behavior. Cook Davis was sympathetic, and told Godfrey that Miller had also pursued her when she was a student at the Seminary. Cook Davis told Godfrey that the Seminary’s Dean of Students, Jeffrey O’Grady, had handled previous complaints about Miller, and would handle her situation when he returned from his vacation.

Kile’s Allegations

Kile first met Miller in the fall of 1999 when he approached her at the Seminary’s library, where Kile worked. Miller asked Kile for the telephone number of two female students who he wanted to take out for dinner. Kile refused to provide that information to Miller.

On two occasions shortly thereafter, Miller came to the library and showed Kile articles about various ministries. Kile briefly and politely talked to Miller each time.

In January 2000, Kile received a package in the mail from Miller, which contained a greeting card with Miller’s picture on it, a newsletter that provided information about Miller’s company, and various other items. Kile informally mentioned this to O’Grady.

Starting in September 2000, Kile studied abroad in Sheffield, England. In the spring of that year, Kile was at the Seminary for a week. During that week, Miller approached Kile in the cafeteria, and asked her for her address in England so they could get together. Kile was “freaked out” that Miller knew she was studying in England, and refused to provide her address to him. Miller then asked Kile for her email address, which Kile provided so she could politely get out of the conversation. She then told Miller that she had to attend chapel service and left the cafeteria.

Later that day, Miller approached Kile as she was leaving chapel service, and told her he had attended the service because she told him she would be there. Kile considered it disturbing that Miller had followed her, and quickly walked away.

A few weeks later, Kile received an e-mail from Miller indicating that he was coming to England. In the email, Miller invited Kile to meet him in London to attend a lecture and go out to dinner. Kile ignored Miller’s email.

In May 2001, Kile learned that Godfrey was planning to speak to O’Grady about Miller’s behavior. Shortly thereafter, Kile emailed O’Grady, and provided him details about Miller’s behavior toward her.

The Seminary’s Response to Grady and Kile’s Complaints

After Godfrey and Kile complained to O’Grady, the Seminary sent a letter to Miller telling him that he was prohibited from entering the Campus Center for any reason other than to attend public events. In the Fall of 2002, Godfrey and Kile informed the Seminary that Miller had violated that prohibition at least twice. They subsequently met with the Seminary’s psychology counselor who specializes in sexual harassment issues, and received copies of the Seminary’s sexual harassment policy. They then filed formal internal complaints of sexual harassment. However, the Seminary subsequently informed Godfrey and Kile that its sexual harassment policy does not apply to Miller since he was a public tenant, not a member of the Seminary community.

The New Jersey Supreme Court’s Legal Analysis

After discussing Godfrey and Kile’s allegations in detail, the New Jersey Supreme Court noted that the standards for considering cases relating to harassment in a place of public accommodation are the same as the standards used to prove harassment in the employment law context. Specifically, to prove sexual harassment in an employment law case, an employee must show that the conduct was severe or pervasive enough to make a reasonable woman believe that her work environment is hostile or abusive. To evaluate whether that standard has been met, a Court must consider (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct was threatening or humiliating, or merely offensive; and (4) whether the conduct unreasonably interfered with the employee’s job performance. In addition, the conduct must be considered cumulatively, instead of looking at each incident individually, since it is typically the impact of many relatively small acts that create a hostile work environment. That evaluation must be objective, meaning it must be viewed from the prospective of a reasonable woman, not from the subjective prospective on the woman who experienced the harassment.

Applying those legal standards to the facts of the case, the New Jersey Supreme Court ruled that Miller’s actions toward Godfrey and Kile were not severe or pervasive enough to be legally actionable sexual harassment. Among other things, the Court considered the fact that there were a limited number of encounters that occurred over a period of years, and that neither of the women told Miller they had no interest in him romantically or otherwise, and neither woman told him to leave her alone. The Court refused to consider the fact that the plaintiffs each felt Miller’s behavior was strange and distressing, or that they considered him to be stalking them, since those reactions are subjective opinions and the law requires an objective evaluation of the evidence.

Notably, and perhaps most clearly explaining why the New Jersey Supreme Court found Miller’s behavior did not constitute unlawful sexual harassment is the following passage it quoted from the Appellate Division’s previous decision dismissing the case:

Miller’s repeated and unwelcome behavior was one of the socially uncomfortable situations that many women encounter in the course of their lives when someone in whom they are not interested persists in trying to persuade them otherwise. In our view, Miller’s persistence did not cross the line and become actionable harassment.

In other words, the New Jersey Supreme Court apparently felt that, although Miller’s actions might have been unpleasant and unwelcome, merely being persistent in asking someone out on dates does not constitute sexual harassment.

The lawyers of our employment law firm, Rabner Baumgart Ben-Asher & Nirenberg, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.