Employment Law Alerts

March 4th, 2013

Same-Sex Harassment Claim Will Go to Trial

Plaintiffs alleging sex discrimination in cases of same-sex harassment often have a more difficult row to hoe than plaintiffs complaining of opposite-gender harassment. For example, employers have sometimes been able to dismiss same-sex sexual harassment claims by arguing the offending words or actions did not express actual sexual desire or arise from perceived sexual orientation. But these arguments do not always work, as a New York employer learned this week.

In Barrows v. Seneca Foods Corp., a heterosexual male employee alleged that his male supervisor (also heterosexual) "constantly made vulgar comments." (We have elected not to reprint them but you can read the opinion here.) He alleged the supervisor directed his comments to "some, but not all, male employees." The employee also alleged that on one occasion, the supervisor grabbed the employee's testicles. Employee said he complained to the company but that the company took no action.

The Employee sued the employer but not the supervisor. (Courts presume a supervisor's discrimination can be imputed to the employer, though the employer may "rebut" this presumption.) The employee claimed the supervisor''s actions created a "hostile work environment" that constituted sexual harassment under Title VII of the Civil Rights Act of 1964, as well as under the New York Human Rights Law.

The employer argued that in these circumstances a man could not sexually harass a man. On the facts presented, the trial court agreed and dismissed the case.

But the federal appeals court in New York reversed and ordered a trial. The appeals court explained that "a plaintiff asserting a hostile work environment sexual harassment claim must prove that he or she suffered discrimination because of his or her sex and that the harassment was ''severe or pervasive''." But the appeals court said the lower court was wrong to conclude that the supervisor''s actions in this case "could never amount to discrimination because of sex." The appeals court focused on evidence that the supervisor "treated women better than men," and that men endured a "disadvantageous term or condition of employment" to which women were not subjected. There was also evidence the supervisor hit the genitals of male employees but not female employees. Therefore, said the court, a reasonable jury could find that this offensive conduct was "gender-based." The appeals court ruled that the employee should be permitted to go to trial to prove his claims.

What the decision means. This case makes clear that offensive words and actions can constitute hostile work environment sexual harassment - even between two heterosexual men and where there is no sexual motive. To reduce the risk of similar liability, make sure your company has a strong policy against sexual harassment and a clear complaint procedure that is readily available to employees. (If an employee brings a harassment claim but has not followed his employer's complaint procedure, a court may dismiss the claim for that reason alone.)

If you have questions about this decision, about instituting proper training and complaint procedures, or about other areas of employment and executive compensation law, please contact Gavin McElroy at (212) 826 5541 or gmcelroy@fkks.com; Wendy Stryker at (212) 705 4838 or wstryker@fkks.com; or any other member of the Frankfurt Kurnit Executive Compensation and Employment Group.