Butcher Can Keep Jury Award in Same-Sex Harassment Case

 

By Jeffrey Rhodes October 3, 2018
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A butcher who said he was sexually assaulted multiple times by other male butchers at a grocery store proved his sexual harassment claim by showing that male and female workers were treated differently, the 7th U.S. Circuit Court of Appeals ruled.

The plaintiff worked behind the meat counter at Rosebud Farm, a local grocery store. For more than four years, male co-workers behind the meat counter harassed him by grabbing his genitals and buttocks. After several years of ongoing sexual and racial harassment from his male co-workers and supervisor, the plaintiff sued Rosebud. He claimed violations of Title VII of the Civil Rights Act of 1964, among other claims. 

At trial, the plaintiff recalled the many times his co-workers groped him, grabbed him and even reached down his pants. They repeatedly mimed oral and anal sex, both on the plaintiff and each other. The plaintiff alleged that his supervisor not only knew about the harassment but even participated in it once or twice. The group also allegedly targeted the plaintiff because of his race, using racial epithets and telling him to "go back to Africa." 

The jury returned a $2.4 million verdict for the plaintiff, which the district court reduced to $470,000. The district court also awarded the plaintiff about $70,000 in back pay and nearly $20,000 in prejudgment interest. Rosebud appealed.

To win this Title VII sexual harassment claim, the plaintiff had to show more than unwanted sexual touching or taunting; he had to show that the harassment occurred because of his sex. Rosebud contended that the plaintiff showed only that the other men in the shop engaged in "sexual horseplay," not sex discrimination. 

[SHRM members-only resource: Workplace Harassment Resources]  

Under the U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services Inc., same-sex unwanted sexual behavior, including touching of genitals and buttocks, are not necessarily actionable under Title VII. Rather, because Title VII is an anti-discrimination statute, not an anti-harassment statute, a plaintiff must show that the unwelcome sexual touching was based on sex. This could be established by evidence that men in the workplace were treated differently from women.

The plaintiff presented testimony that showed that only men were groped, taunted and otherwise tormented in the grocery store. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men. No witness recalled seeing female employees subjected to the same treatment. 

Rosebud argued that this direct comparative evidence was insufficient because only male employees worked behind the meat counter. If the plaintiff worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sex discrimination. 

However, the plaintiff's supervisor acknowledged that Rosebud was a mixed-sex workplace where men and women interacted daily. There were six or seven women and 15 to 16 men in the small store, and female employees sometimes worked in the meat department when the shop was busy. Female employees also brought orders and returned items to the meat counter. 

There was also evidence that male-on-male harassment occurred in other areas of the store, including the stockroom and the produce section. Thus, the appeals court found that, because the plaintiff produced evidence that his co-workers harassed only male employees, the jury could conclude that these men discriminated against him on the basis of sex.

Smith v. Rosebud Farm Inc., 7th Cir., No. 17-2626 (May 29, 2018).

Professional Pointer:  Because same-sex horseplay often occurs in workplaces where one gender predominates, evidence of such horseplay alone will not establish a legal violation. Nevertheless, the need to show disparate treatment can be easily satisfied, and thus employers must prevent unwelcome sexual conduct by members of the same gender.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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