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Hampel v. Food Ingredients Specialties, Inc.; To Prove That Your Same-Sex Co-Worker Sexually Harassed You, First Prove That He Was Sexually Attracted To You

The author would like thank Professor Weatherspoon for his direction and encouragement, the Ohio Civil Rights Commission, the Ohio Attorney General's Office, Civil Rights Section and ETTA.

Introduction

It is illegal in Ohio for a man to sexually harass another man in the workplace.1 In Hampel v. Food Ingredients Specialties, Inc.,2 however, the Supreme Court of Ohio interpreted a male defendant's sexually charged language as shop talk, rather than sexual harassment.3 In Hampel, the defendant, a male supervisor, berated a male employee with language that included a demand for the employee to perform oral intercourse on him.4The court acknowledged that although the supervisor's statements had sexual content, however the court found that it did not rise to sexual harassment.5 The court then suggested that it would have found sexual harassment if the defendant was homosexual.6 Hinged on the defendant's denial that he was homosexual, the court made the presumption that the defendant's conduct was not sexually motivated. Without sexual motivation, the court held that the gender-based component of a sexual harassment claim did not exist.7 Further, the court concluded that without the element of gender, the defendant's conduct did not rise to sexual harassment..8 Hampel served to establish that a plaintiff in a same-gender sexual harassment case must prove that their harasser was sexually attracted to them.9

When considering traditional male-female sexual harassment claims, the Supreme Court of Ohio assumes that there is an inference of sexual desire between parties of the opposite sex.10 However, when the court considers same-gender sexual harassment claims, it adopts this inference only if the harasser is homosexual. Therefore, the court's decision in Hampel creates a higher burden of proof in Ohio for victims of same-gender sexual harassment than for victims of traditional, male-female sexual harassment.

The court erred in Hampel when it glossed over the defendant's admission that he would not have displayed the same sexual conduct to a woman.11 The defendant's admission proved that his conduct fit the plain meaning of sexual discrimination: exposing members of one gender to disadvantageous terms or conditions of employment to which members of the other gender are not exposed.12 The court in Hampel interpreted the defendant's admission as his personal code of honor towards women, instead of interpreting the defendant's conduct as sexual discrimination towards men.13

To the extent that the court's decision in Hampel acknowledged same-gender sexual harassment, it agreed with the United States Supreme Court's decision in Oncale v. Sundowners Offshore Service.14 Oncale was the Court's first decision recognizing same-gender sexual harassment under Title VII of the Civil Rights Act of 1964, as amended ("Title VII").15Title VII prohibits discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of sex.16

Although the Court in Oncale used certain tests for determining what constitutes same-gender sexual harassment, the Supreme Court of Ohio in Hampel failed to apply these tests. For instance, the Hampel court did not apply an objective standard, which would have focused on the defendant's intent to harass. Using an objective standard, the court would have considered whether the defendant was motivated by animus toward men in the workplace or whether the defendant harassed with the intent of intimidating subordinates or exploiting his supervisory power. Instead, the court considered only whether the defendant was motivated by his sexual desire for the plaintiff.17

The Supreme Court of Ohio's misapplication of Oncale could potentially result in Ohio courts dismissing all claims of same-gender sexual harassment involving heterosexual harassers. At the very least, the holding in Hampel will discourage victims of same-gender sexual harassment from filing a suit under Ohio law.

This comment will begin with a review of the facts of the Hampel decision. Section II will outline the legal framework of sexual harassment. Next, Section III will consider the evolution of same-gender sexual harassment. Section IV will analyze the Ohio Supreme Court's decision in the Hampel case. Lastly, this comment will address the future implications of the Hampel decision, as well as propose a resolution to the present test for same-gender sexual harassment.

I. Statement Of The Case

Laszlo J. Hampel worked as a cook...

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