Same-sex Harassment – it is Really the Same!
It wasn’t until 1983 that the Supreme Court emphatically stated that Title VII protects both men and women from discrimination in the workplace. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983). Same-sex harassment, however, is a much more recent development. It was not until 1998 that the Supreme Court acknowledged this was actionable under Title VII. Courts across the country have posed various positions with respect to the protection afforded to victims of same-sex harassment, particularly men. It took a case of severe sexual harassment by several males against another male for the Supreme Court to resolve the split among the Appeals Courts. In Oncale v. Sundowner, 523 U.S. 75 (1998), the Supreme Court ruled that Title VII also applies where the harasser and the victim are of the same sex.
“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 80.
With respect to Title VII, the same standards apply for same-sex harassment as they do for harassment by a member of the opposite sex. Some would argue, however, that convincing a jury that the same sex harassment was “motivated by sex,” is more difficult. It should be understood that this is a societal underpinning and not a legal one. The Court continued in Oncale, that “Title VII prohibits ‘discrimination . . . because of . . . sex’ in the ‘terms’ or ‘conditions’ of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Id. at 80. The key of course is that the harassment is based upon sex and affects the terms or conditions of employment.
In Chavez v. Thomas and Betts Corp., 396 F.3d 1088 (10thCir.2005), the Tenth Circuit Court of Appeals reiterated that “[s]ame-sex harassment arising from a hostile work environment is actionable under Title VII if the plaintiff can “prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.” (quoting Oncale). In the frame-work of a hostile environment, the 10th Circuit has adopted a two-part test to determine whether a hostile work environment arising from same-sex harassment has occurred.
First, the court must determine whether the harasser’s conduct constituted discrimination because of sex. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002); see also James v. Platte River Steel Co., 113 Fed. Appx. 864, 2004 WL 2378778 *2 (10th Cir. 2004) (unpublished). To determine whether discrimination occurred because of sex, evidence must exist from which the fact finder could infer the plaintiff was harassed because she is a woman. Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998). “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80 (internal quotation omitted).
Second, if a plaintiff carries her burden under the first prong, the court must decide whether the challenged conduct meets the applicable standards for a hostile work environment claim. See LaDay, 302 F.3d at 478.
A hostile work environment exists if the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citation and quotation omitted). The conduct in question must be judged by both a subjective and an objective standard. See id. To determine whether an environment is hostile, courts must look at all the circumstances, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotation and citation omitted). Chavez v. Thomas and Betts Corp., 396 F.3d 1088, 1096. (10thCir.2005)
The analysis for the “pervasive or severe” prong is precisely the same as when the harasser and victim are of the opposite sex and therefore only the first prong will be discussed here.
The Court in Oncale explained a plaintiff can prove that same-sex discrimination was “because of sex” in three different ways. Oncale, supra.
1. When the conduct “involves explicit or implicit proposals of sexual activity.” Id. at 80.
2. When a female employee is harassed “in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.” Id. at 80.
3. By “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id. at 80-81.
The 10th Circuit has accepted these methods with the understanding they are not to be considered the only methods by which same sex discrimination can be proven. In Medina v. Income Support Division, 413 F.3d 1131 (10thCir.2005), the Court clearly stated that other methods could be available depending upon the facts of the case. This included the failure to conform to sexual stereotypes. Id. at 1134.
In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998), the Supreme Court discussed three evidentiary routes under which a plaintiff in a same-sex sexual harassment suit might prove that she was discriminated against because of her sex. First, she can establish that her harasser’s discriminatory conduct was motivated by sexual desire. Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1263 (10th Cir. 2005). One way to do this is to put forth evidence that her harasser is homosexual and that she proposed sexual activity with the plaintiff. Id. at 1265. Second, a plaintiff might prove that she was harassed because of her sex if she demonstrates that the harasser’s conduct was motivated by hostility to the presence of that sex in the workplace. Id. at 1264. Finally, a plaintiff may produce comparative evidence showing that her harasser treated women and men differently in a mixed-sex work environment. Id.; Chavez, 396 F.3d at 1096.
These routes, however, are not exhaustive. The Third Circuit has held that a plaintiff may satisfy her evidentiary burden by showing that the harasser was acting to punish the plaintiff’s noncompliance with gender stereotypes. Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 263-64 (3d Cir. 2001). This route is rooted in Price Waterhouse v. Hopkins, a case in which the Supreme Court reviewed the sex discrimination claim of a woman who had been denied partnership in an accounting firm at least in part on the basis that she was “macho,” “overcompensated for being a woman,” needed “a course in charm school,” was “masculine,” and was “a lady using foul language.” 490 U.S. 228, 235, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), modification by statute recognized in Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-102, 156 L. Ed. 2d 84, 123 S. Ct. 2148 (2003) (considering the impact of 42 U.S.C. Ã?§ 2000e-2(m) on mixed motive cases). In that case, a partner in the firm advised the plaintiff that if she wished to improve her chances of earning partnership, she should act more “femininely,” wear make-up, do her hair, and wear jewelry. Id. A plurality of the Court agreed that “in the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250.
Plaintiff’s Approach for each method of proving the discrimination is “because of sex”:
Proposals of Sexual Activity
The most obvious example of this situation is when a homosexual co-worker makes advances toward a fellow employee, presumably of the same sex. The key is to show that the harasser’s actions were motivated by sexual desire. See Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1264 (10thCir.2005).
General Hostility Towards Women
This is potentially the most difficult for a Plaintiff to prove. Although it certainly happens, it is difficult to imagine a female in a working environment where she harbors a clear hostility toward other women in her workplace. Perhaps an easier scenario to envision is a male who maintains hostility toward other males in favor of females. In either instance, it is central to find evidence that the harasser does in fact harbor such hostility. This “method” alone would be a difficult one to prove, but using direct comparative evidence to prove such hostility would certainly benefit the Plaintiff.
Direct Comparative Evidence
This method is most likely to reveal evidence helpful in showing a same-sex harassment victim was in fact discriminated against based upon their sex. Evidence of the work environment and how men and women were treated by the harasser would help in showing that the harasser did in fact discriminate based upon sex. One discovery issue to consider is the make up of the work force and supervisory chain to determine which individuals would be most knowledgeable about how and if they were treated differently. The same methods used to show gender discrimination for a harasser and victim of opposite sexes would also be helpful to analyze the work environment.
Failure to Conform to Sexual Stereotypes
Again, finding the evidence to show that harassment was based upon a failure to conform to sexual stereotypes will be difficult. The blatant appearance of the Plaintiff will itself be significant. Co-workers impressions of the Plaintiff would be telling as well. Developing evidence of the philosophy of the organization would be helpful in establishing that conformity is encouraged and a lack of same is punished.
Although the methodology used to show same-sex sexual harassment and discrimination is the same, take caution to look closer at the subtleties in the evidence. Use these to analogize the case to an “opposite sex” scenario and any preconceived notions among jury members can be extinguished.
