Undesired Offensive Touching Lewd and Vulgar Remarks Can Be Actionable on An Invasion of Privacy Theory
In Vernon v. Medical Management Associates of Margate, Inc., 912 F. Supp. 1549, 1561 (S.D. Fla. 1996), the district court held that the plaintiff's invasion of privacy claim, alleging "a pattern of persistent touching, squeezing, fondling, hugging, blowing and tickling, along with the repetition of lewd and vulgar sexual remarks" should have survived a motion to dismiss.
In Vernon, the district court explained that an increasing number of courts have recognized that allegations of offensive and undesired touchings of a sexual nature state a cause of action for invasion of privacy:
In Stockett v. Tolin, 791 F. Supp. 1536 (S.D. Fla. 1992), the court held that "the repeated and offensive touching of the most private parts of Plaintiff's body . . . constitutes an intrusion into [the plaintiff's] physical solicitude" amounting to invasion of privacy under Florida law. 791 F. Supp. at 1556.
State Farm Fire & Caves. Co. v. Compupay, Inc., 654 So. 2d 944, 948 (Fla. 3d Dist. Ct. App.) (noting that some Florida courts have recognized an actionable "intrusion" where the plaintiff's person has been touched in an undesired or offensive manner), rev. denied, 662 So. 2d 341 (Fla. 1995);
Hennagan v. Department of Hwy. Safety & Motor Vehicles, 467 So. 2d 748, 750-51 (Fla. 1st Dist. Ct. App.1985) (reversing the trial court's dismissal of an invasion of privacy claim based on an "unlawful touching" by a police officer who sexually assaulted a minor after stopping her on the pretext that she was under suspicion for theft). Florida courts also have acknowledged that, at least under some circumstances, even comments of a sexual nature made by an employer can be actionable on an invasion of privacy theory.
Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 at 1315 (noting that Florida law does not preclude an invasion of privacy action for sexually related comments when the comments are accompanied by publication to a large number of people);
Ponton v. Scarfone, 468 So. 2d 1009, 1010 (Fla. 2d DCA) (rejecting invasion of privacy claim where an employer's verbal attempts to seduce the plaintiff lacked sufficient publication).
Courts in other jurisdictions have agreed that allegations of sexual harassment involving touching or verbal abuse can form the basis for an invasion of privacy claim. See, e.g., Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 528 (D.D.C.1981) (finding that the plaintiff stated a claim for invasion of privacy by alleging that her supervisor had repeatedly called her at home and at work in order to make lewd comments about her sex life). Id.
See also Kelley v. Worley, 29 F. Supp. 2d 1304, 1311 (M.D. Ala. 1998) (holding that the plaintiff's invasion of privacy claim, alleging that defendant committed sexually harassing acts of physical contact at work, should have survived the defendant's summary judgment motion).