4th Circuit Adopts Expansive View of Same-Sex Harassment

A male supervisor's repeatedly calling a male employee gay, making sexually explicit and derogatory remarks about him, and physically assaulting him, according to the plaintiff, were sufficient to state a claim of same-sex sexual harassment even without evidence that the supervisor himself was gay, ruled the 4th U.S. Circuit Court of Appeals.

Joining five other federal appeals courts, the 4th Circuit held that the three situations identified by the U.S. Supreme Court in Oncale v. Sundowner Offshore Services were only examples, not the exclusive scenarios that would support a same-sex sexual-harassment claim.

The plaintiff appealed the trial court's entry of summary judgment in favor of his former employer, Glenn Industrial Group Inc., on claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The 4th Circuit affirmed summary judgment as to the plaintiff's retaliation claim but vacated summary judgment as to his sexual-harassment claim.

The plaintiff was employed as a diver's assistant by Glenn Industrial, a North Carolina-based corporation that provides high-risk underwater inspection and repair services to utility companies.

From the beginning of the plaintiffs' employment, his supervisor repeatedly called him gay and made sexually explicit and derogatory remarks toward him. The supervisor also allegedly physically assaulted the plaintiff at least twice.

The plaintiff complained about the supervisor's conduct to three different company officials but never to the company's CEO as required by the company's anti-harassment policy. The company never disciplined or counseled the supervisor, who purportedly continued to harass the plaintiff.

According to the plaintiff, despite the high-risk nature of the work and the company's stated emphasis on safety practices, the company often failed to address workplace safety issues, including several that the plaintiff had reported. Nevertheless, the CEO ultimately terminated the plaintiff's employment allegedly for safety violations.

After filing an Equal Employment Opportunity Commission charge and ultimately receiving a right-to-sue letter, the plaintiff sued Glenn Industrial alleging, among other claims, same-sex sexual harassment and retaliation.

The district court rejected the plaintiff's claim that his supervisor harassed him on the basis of sex and granted summary judgment to the employer. The court found that none of the three same-sex harassment situations identified by the Supreme Court in Oncale applied in the plaintiff's case. Also, the plaintiff had not established a claim of retaliation under Title VII, according to the district court, because he did not show that the CEO—the decision-maker—had been aware of his sexual-harassment complaints before he fired him.

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On appeal, the plaintiff contended that the trial court erred in both conclusions.

To establish an initial case of sexual harassment based on a hostile work environment, a plaintiff must prove that 1) there was unwelcome conduct, 2) the conduct was based on the plaintiff's sex, 3) the conduct was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create a work environment that was both subjectively and objectively abusive, and 4) the conduct is attributable to the employer.

The trial court's decision addressed only whether the harassment was "based on sex," finding that none of the three Oncale situations applied. The only one that might arguably have applied was the existence of credible evidence that the harasser was gay and had proposed sexual activity. The evidence, however, was that the harassing supervisor was straight, and that none of his words or actions amounted to proposals of sexual activity.

The 4th Circuit reversed, adopting the view held by all other circuits (3rd, 5th, 7th, 8th and 10th) that had conclusively ruled on the matter, and held that nothing in Oncale indicates the Supreme Court intended its three examples to be the only ways to prove that same-sex sexual harassment is sex-based discrimination. Accordingly, the plaintiff did not need to show that his supervisor was gay and had made explicit or implicit proposals of sexual activity.

Rather, the court said, same-sex sexual harassment can also be shown by proof of discrimination based on a plaintiff's failure to conform to sex stereotypes. Thus, the district court erred in granting summary judgment to Glenn Industrial on the plaintiff's same-sex sexual-harassment claim, and the case was sent back to the district court for further proceedings.

With regard to the plaintiff's claim that Glenn fired him in retaliation for his complaints of sexual harassment, the appeals court found that the plaintiff failed to establish an initial case of retaliatory termination because he failed to demonstrate a causal relationship between his protected activity and his employer's adverse action. The CEO did not have actual knowledge of the plaintiff's complaints of sexual harassment when he terminated him. Moreover, there was a lack of proximity between the plaintiff's last complaint in January 2016 and his termination in April 2016.

Roberts v. Glenn Industrial Group Inc., 4th Cir., No. 19-1215 (May 21, 2021).

Professional Pointer: Neither company executives nor front-line supervisors—or even HR professionals—can be expected to know and apply the nuances of what does or does not legally constitute same-sex sexual harassment. But they can and are expected to recognize flagrantly unacceptable workplace conduct, regardless of whether it amounts to unlawful discrimination, and to put a stop to it.

Margaret M. Clark, J.D., SHRM-SCP is a freelance writer based in Arlington, Va.