An employee comes to you with a sexual harassment complaint. Unfortunately, that’s not so uncommon. You immediately conduct a full interview with the employee, and then you start to have doubts. The employee is a man, and he is complaining that the harasser is his male supervisor. You know that federal and state laws recognize same-sex harassment claims. So what’s the issue, then? You know the behavior alleged is wrong, but you’re not sure it’s sexual harassment as defined by the applicable laws. Does/should that matter? What do you do? Read on for some answers… Fortunately, we have a real, live case just decided by the 4th Circuit Court of Appeals. Yes, I know the ruling is only binding on federal courts in the 4th Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina ). With this most recent ruling, however, the 4th Circuit joins the 3rd, 5th, 6th, 7th, 8th and 10th circuits, meaning 7 out of 13 circuits have ruled in essentially the same way. Have I got your attention now?
The case is Roberts v Glenn Industrial Group, Inc. No. 19-1215 May 24, 2021. Here, in a nutshell, is what went down:
In 2015, Chazz Roberts began working as a diver for Glenn Industrial, which provides underwater inspection and repair services to utility companies. Roberts’ supervisor, Andrew Rhyner, from the beginning, allegedly referred to Roberts as “gay”, made sexually explicit and derogatory comments to him, including, “how much dicks [he] would suck for money”. Rhyner also assaulted Roberts at least twice. One time he allegedly slapped Roberts’ safety glasses off his face, pushed him and put him in a chokehold. Another time, allegedly, Rhyner slapped Roberts, knocking off his helmet, because Roberts “said something stupid”. Roberts complained to 2 different supervisors more than 4 times. The first supervisor told Roberts to “suck it up”. The second supervisor even witnessed some of the conduct. Roberts also complained to Human Resources, and the CEO’s wife, who also happened to be a company VP. Rhyner was never disciplined, and apparently, the company did not investigate the matter.
Separate from these issues, Roberts was involved in 2 workplace accidents and was removed from the site. In one incident he apparently was acting erratically, and even underwent a drug test (which came back negative). The CEO ultimately fired him. It is undisputed that Roberts never told the CEO of the harassment, and the evidence shows that the CEO did not know of those allegations until he saw an EEOC charge months later. Roberts filed an EEOC charge, alleging sex discrimination/harassment and retaliation under Title VII. The EEOC issued a “right to sue” letter, and so Roberts sued.
The District Court granted summary judgment on both claims to Glenn Industrial. Regarding the harassment claim, the court concluded that Roberts’ allegations didn’t meet the standard for sexual harassment and relied on the US Supreme Court case, Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)–more on that in just a moment– and cited the CEO’s lack of knowledge of those allegations as its reason for essentially dismissing the retaliation claim. Roberts appealed, arguing, in part, that the District Court misinterpreted and misapplied Oncale. The 4th Circuit reversed the ruling regarding the harassment claim and affirmed the lower court’s dismissal of the retaliation claim.
OK, so first, briefly here’s the scoop on Oncale, why it’s relevant at all, what it said and what the 4th Circuit said about its application to this case. Oncale is the US Supreme Court ruling that established that sexual harassment within the meaning of Title VII includes same-sex harassment. The Court then identified 3 evidentiary routes by which an employee could prove same-sex harassment based on his/her sex:
(1) when there is “credibleevidence that the harasser [is] homosexual” and the harassing conduct involves “explicit or implicit proposals of sexual activity;” (2) when the “sex-specific and derogatory terms”of the harassment indicate “general hostility to the presence of [the victim’s sex] in theworkplace”; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a “mixed-sex workplace.”
The Court went on to say that “Whatever evidentiary route the plaintiff chooses to follow . . . he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discriminat[ion] . . . because of . . . sex.’” The District Court found that Roberts’ allegations didn’t satisfy any of the above 3 factors. First, the only evidence as to Rhyner’s sexual orientation indicated he was “straight”. There was no evidence Rhyner proposed any sexual activity with Roberts. The court also reasoned that since the workforce was entirely male, there could be no evidence that the behavior was motivated either by general hostility toward the presence of [the victim’s sex] in the workplace. Similarly, because it was an all-male workplace, Roberts could not satisfy the third factor, either.
So, if Roberts’ allegations couldn’t line up with any of the above 3 evidentiary routes, how does he still have a viable sexual harassment claim? Here, according to Roberts and the majority of Circuits is the problem: Oncale identified the above 3 evidentiary routes as examples. There is no evidence that the Supreme Court ever intended them to be the only ways that an employee can prove a same-sex harassment claim. Moreover, the facts in Oncale didn’t line up with any of those 3 evidentiary routes, and the US Supreme Court still found the underlying same-sex harassment claim viable. The court also held that the actions themselves did not have to be of a sexual nature to be harassment based on the victim’s sex.
The District Court also seemed to have forgotten about another US Supreme Court ruling, Hopkins v Price Waterhouse 490 U.S. 228 (1989) which recognized sex discrimination/harassment claims based on perceptions that an employee/plaintiff doesn’t conform to sexual stereotypes. This case has also been used successfully in same-sex harassment claims as well as discrimination claims based on sexual orientation and gender identity. For all these reasons, the court reversed the summary judgment ruling on the harassment claim and remanded it to the District Court to properly apply Oncale and to then determine whether Roberts established that the harassment he suffered was due to his sex. This ruling just gave the case significant settlement value. I’ll be staying tuned to hear what happens next.
What can you do in the meantime? Here are some starting points:
- Treat all harassment allegations the same, taking all of them seriously, and promptly investigating them;
- Remember that same-sex harassment is prohibited under Title VII (and state anti-discrimination laws as well);
- Keep in mind it doesn’t matter whether the alleged harasser is proposing sexual activity with the target. If evidence shows hostility or harassment that is based on the victim’s gender the allegations may support a viable harassment claim;
- Remember that harassment based on someone’s perceived failure to conform to gender stereotypes also supports a sexual harassment claim.
- If you find that an accused harasser’s actions fit with the above considerations, discipline them in the same way you would discipline someone accused of what you might see as more “traditional” sexual harassment.
- Make sure your policies reflect the above considerations and make sure that everyone knows about and receives training on these policies — especially HR or whoever is charged with enforcing them.
- Speak with in-house or friendly local employment counsel whenever you have a question.
One more point: Even if the behavior complained of isn’t, technically, sexual harassment, it certainly looks and feels like bullying, an issue that your company as an employer, will still need to address. Do you want that in your workplace? That behavior can escalate to something far worse. Choosing to do nothing just because the behavior may not specifically fit within minimal statutory parameters is probably not in your company’s best interests.
OK, I think that’s enough for now. See you next time.
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