• Boys Gone Wild: Rough Horseplay Can Be Same-Sex Sexual Harassment
  • March 15, 2013 | Authors: Sean P. Beiter; Caroline J. Berdzik; Philip H. McIntyre; Matthew C. Van Vessem
  • Law Firms: Goldberg Segalla LLP - Buffalo Office ; Goldberg Segalla LLP - Princeton Office ; Goldberg Segalla LLP - Buffalo Office
  • A recent federal court decision provides a useful reminder that abusive and offensive behavior that is targeted at employees of one gender can amount to unlawful sexual harassment. The particular behavior involved in this case was specifically “sexual” in nature, but the court’s decision makes it clear that even behavior with no sexual content can be sexual harassment if it is directed only at males or only at females.

    The case is Barrows v. Seneca Foods Corporation, decided on February 25, 2013 by the U.S. Second Circuit Court of Appeals, which oversees the federal district courts in New York. The case had been dismissed by the district court in a summary judgment prior to trial, on the theory that even if the plaintiff were able to prove his allegations they could not establish a viable claim of sexual harassment. The Second Circuit Court disagreed, ruling that if the plaintiff’s allegations were viewed in the light most favorable to him — as is required at summary judgment prior to trial — they could establish unlawful sexual harassment. The court therefore sent the case back for further proceedings, presumably a jury trial.

    According to the plaintiff’s allegations, his supervisor constantly made vulgar comments to him of a sexual nature, such as referring to him as a “faggot” and saying that he should perform homosexual acts. The supervisor made similar comments to some, but not all, of the other male employees. He grabbed the plaintiff’s genitals on one occasion during an argument, and hit the plaintiff and other male employees in the crotch on other occasions. The plaintiff did not allege that the supervisor was homosexual, or that the supervisor believed the plaintiff was homosexual, but he did allege that the supervisor did not direct similar harassment to female employees.

    The court analyzed the plaintiff’s allegations in light of the U.S. Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services. Prior to that case, many thought that unlawful “same-sex sexual harassment” could only occur when a homosexual man or woman is sexually attracted to another employee of the same gender. But the Supreme Court said that same-sex harassment can be unlawful sexual harassment in three separate kinds of situations: (1) if there is evidence that the harasser is homosexual, and therefore presumably motivated by sexual desire; (2) if the victim is harassed in such sex-specific and derogatory terms as to make it clear that the same-sex harasser is motivated by general hostility toward employees of that gender; and (3) if there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”

    The Second Circuit in Barrows relied solely on the third category above to rule that the plaintiff was entitled to attempt to prove his claim at trial. Since this ruling did not turn on the sexual content of the supervisor’s harassment, it is clear that the same result could have been reached if the supervisor had hit male employees (but not female employees) in the face or in the stomach, or made offensive comments to them containing no specific sexual content. In other words, any kind of abusive, offensive behavior can be sexual harassment, even if its content is totally sex-neutral, if it is targeted only at one sex and is sufficiently severe or pervasive.

    The court found the specific sexual content of the supervisor’s conduct to be relevant only in two respects. First, it said that the supervisor’s sex-specific vulgar comments and the fact that he frequently touched male employees’ private parts, although not necessary to the claim, “could contribute to a reasonable jury’s ultimate conclusion that the alleged harassment was motivated by the victim’s sex.” Second, since alleged sexual harassment will not violate the law unless it is “severe or pervasive enough to create [both] an objectively [and subjectively] hostile or abusive work environment,” the court said that the sexual content of the supervisor’s alleged conduct was relevant because “[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”

    Employers typically perceive legal danger when employees act in a way that appears to be motivated by reasons of sexuality. In this case, if the supervisor had been perceived as a homosexual seeking sexual favors from the plaintiff, or if it had been perceived that he was harassing the plaintiff because he believed the plaintiff was homosexual, presumably the employer would have done something about it. But Barrows shows that any kind of harassing behavior can be sexual harassment if it affects only one gender and is sufficiently “severe or pervasive” to create a hostile work environment.

    It should be noted that the employer in this case could still have escaped liability if it had been able to show that (1) it “exercised reasonable care to prevent and correct promptly any harassing behavior” and (2) the plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.” This is the “Faragher/Ellerth” defense, which depends upon training and vigilance by management; a well-publicized policy that prohibits unlawful harassment and provides a means for employees to complain and get relief; and prompt and effective corrective action by management when employees do complain. However, in this case the employer was unable to establish this defense at the summary judgment stage, because the plaintiff alleged he had complained about the supervisor’s behavior on multiple occasions but nothing was done to stop it.