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(Below is my comment on the blog posting by a member - Richard Tuschman - of the Alumni Group of my former law firm, Epstein, Becker & Green. The topic is the Eleventh Circuit Court of Appeals decision in the controversial case of Corbitt v. Home Depot, which is scheduled to be heard "en banc" - that is, by the full panel (which is unusual and only occurs when the court deems the issue particularly important, or, in this case, controversial). See weblink at bottom.)

I just hope, with all the passion I can muster, that the Corbitt decision(s) does NOT get overturned. To be sure, I'd like to see the court [continue to] go the OTHER way. As Camille Paglia and other bright contemporary sociologists, evolutionary biologists and thinkers have noted, our society - particularly in the workplace - has become so rigid, narrow-minded and downright paranoid that we have completely lost sight of what it means to be a human. And we must not forget that one of the most fundamental evolutionary aspects of being a homo sapien - a member of the animal kingdom - is our sexuality.

Quite frankly I think American law in this context [e.g. Title VII, sexual "harassment"] has devolved to a point beyond the absurd. To suggest that flirting, and even superficial/casual "touching", among persons - regardless of whether it occurs in the workplace and notwithstanding the fact that one may act in a supervisory capacity to another - is somehow "wrong" or should be deterred is preposterous!

Indeed, our corporate conglomerations have grown so large, and we now spend such a significant portion of our lives in the workplace, coupled with the fact that despite advances in technology, we are in many ways more socially alienated than ever before, means that it has become increasingly difficult to meet others with whom to partner or "mate". This, in turn, means that romance AND FLIRTING in the workplace is actually more important than ever!

This is NOT to say, however, that I do not believe there are some [very narrow and limited] circumstances in which this kind of interaction becomes improper, but such conduct must be characterized by, and limited to, the most egregious, repetitive, disruptive and UNWANTED physical touching - not unlike the kind of conduct that would rise to the level of criminal sexual battery. And behavior meeting this threshold so as to warrant administrative or legal sanctions - to say nothing of civil liability and damages - is extraordinarily rare. Furthermore, I believe that prior notice - by the "victim" to the "accused" - should be a prerequisite to sustaining a cause of action or adverse employment decision and that the former MUST be compelled to make it absolutely and unequivocally clear to the latter that the conduct/touching is unwanted.

I realize my opinion may be inconsistent with the current state of law - in other words, I do not recommend that an individual or employer act in any way that would expose he, she or it to adverse legal ramifications (said another way, this is not formal legal advice:). But I DO believe and hope that our legislature and judiciary should and will eventually come to pass and implement rules and regulations that are consistent with my views and with a MUCH more logical, liberal and natural (in the evolutionary sense) state of affairs.

Auden L. Grumet, Esq.
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