A recent same sex sexual harassment case out of the 5th Circuit potentially opens the door for a significant expansion of what constitutes a hostile work environment under federal law.
In terms of parsing federal court decisions, any time you see federal judges start off by quoting the Supreme Court’s aphorism that Title VII is not a general civility code for the work place, you should be suspicious that they are about to enforce Title VII as if it is a general civility code for the work place. That is precisely what happened here. The plaintiff was an iron worker who, by virtue of several comments during a lunch discussion about using baby wipes instead of toilet paper (I guess I really didn't know what iron workers talk about at meal times), was thought to be not quite masculine enough for his supervisor. As a result of this, the plaintiff suffered a fair amount of derisive and personal comments while at work, although none related to baby wipes specifically. He complained, filed a charge of discrimination, and went to trial. The jury believed his harassment claims, but the 5th Circuit Court of Appeals on its first review reversed the jury, determining that there was not enough evidence to support a verdict of sexual harassment. The EEOC, which was prosecuting the case on behalf of the plaintiff, appealed for a full 5th Circuit review.
In the full review, the Court started off by quoting the only same sex sexual harassment case to be decided by the Supreme Court, Oncale, and noting that Title VII is not a statute designed to enforce civil speech codes in the work place. The Court then noted that gender stereotyping (i.e., discriminating against someone because they do not meet the stereotypical behavior associated with a particular gender) is a valid basis for a sexual harassment/hostile work environment claim. So far, so good, this stuff is pretty well established law.
The Court noted initially that the allegations of conduct by the plaintiff – almost daily put downs and occasional physical demonstrations relating to homosexual or feminine characteristics– were enough to establish a hostile work environment. The Court then took on the company’s failure to establish the affirmative defenses to a sexual harassment case allowed by the Supreme Court’s decisions in Farragher and Ellerth. The Court determined that the company had not undertaken a comprehensive training of its supervisors on sexual harassment, nor had it done a good job of putting the word out for its work force on how to properly report harassment to the company’s HR staff. Moreover, the company’s investigation of Plaintiff’s initial allegations was not terribly effective – the investigation was a 20 minute interview with the plaintiff resulting in him being sent home with no pay for 3 days. There was no disciplinary action against the alleged harasser, although it was clear that some improper conduct had occurred. In short, the Court found that there was both a failure to put into play proper prevention steps, and a failure to follow up on plaintiff’s allegations, both of which effectively denied the employer the ability to use the affirmative defense.
The real meat of the case is found in the surprisingly long and detailed dissent, most of which focused on a fairly straight forward point – that the EEOC had no evidence to infer discriminatory intent based on gender. The dissenting judges keyed on a subtle aspect of the Supreme Court’s decision in Oncale – that the normal practice of inferring gender animus in male-female sexual harassment claims applies to same sex sexual harassment claims only if an additional step is taken to demonstrate that the basis of the inference is gender. In same sex harassment cases, in other words, a plaintiff must prove that the harassment is because of sex, the motivation is not assumed as it is in opposite gender cases.
The dissent noted that the only basis for establishing that the supervisor felt the plaintiff was not manly enough was the fact that he used baby wipes in lieu of toilet paper and this didn't fit a stereotype. There was no other evidence to show that anyone felt that Plaintiff was being singled out because he was a man, as opposed to being an iron worker just like the rest of them. In fact the supervisor testified specifically that he did not consider the Plaintiff unmanly. The plaintiff himself did not testify that he was being treated the way he was because he was not “manly.”
Moreover, there was no evidence that the plaintiff did not act in a masculine way. The dissent stated that without some objective evidence that the plaintiff was unmanly, or at least acting in an unmanly way, plaintiff's allegations were simply of mistreatment at work, and not nearly enough to support a Title VII violation.
In a same sex harassment case, with an all male work force where profane and obscene language is common, the dissent said that the reason for harassment (i.e., whether it is because of sex) must be separately proved by the plaintiff. Bad language and lewd actions are simply not enough. This is particularly true in a situation where the alleged harasser treated everyone at the worksite with derogatory comments, and homosexual insults. As the dissent notes, it make no sense at all that a heterosexual male can discriminate against another heterosexual male by simply calling him names indicating unmanliness, which both know not to be true by conduct or appearance.
So this is a disturbing case, reflecting an analytical failure by a full federal court of appeals. With any luck the analysis won't get any further, because there are lots of bad words and conduct in a typical workplace, only a few of which are actually motivated by gender animus.