In Davis v. Wawa, No. 25-2550, 2026 WL 1298513 (3d Cir. May 12, 2026), the U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order granting summary judgment dismissing plaintiff’s claim of hostile work environment sexual harassment.
From the decision:
To establish a hostile work environment claim based on sexual harassment, a plaintiff must show “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213 (3d Cir. 2017) (quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)).3 In evaluating such claims, courts consider, among other factors, the “frequency of the discriminatory conduct” and “whether it unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). When a plaintiff alleges only an isolated incident, it must be “extremely serious” and “amount to a change in the terms and conditions of employment” to establish a hostile work environment. Id. at 788; Castleberry v. STI Grp., 863 F.3d 259, 264–65 (3d Cir. 2017) (holding that single incident of a racial slur accompanied by “threats of termination” could be severe enough to create a hostile work environment).
Davis’s allegation of a single incident of unwanted physical touching by a supervisor is not serious enough for a reasonable juror to find that it resulted in a change in the terms and conditions of his employment. See, e.g., Bowman v. Shawnee State Univ., 220 F.3d 456, 464–65 (6th Cir. 2000) (concluding that multiple incidents of alleged sexually harassing conduct by a supervisor across a number of years, including unwanted physical touching, were not sufficiently severe or pervasive to establish hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir. 1998) (reasoning that “four isolated incidents” of unwanted physical touching by a coworker—including “the most serious misconduct, the unwanted touching of [Appellant’s] buttocks, [which] took the relatively mild form of a poke and occurred only once”—were insufficiently severe to create hostile work environment under Title VII).
The court thus concluded that because plaintiff failed to show that he suffered severe or pervasive discrimination, Wawa was entitled to summary judgment on his hostile work environment claim.