Second Circuit: Harassment Between Straight Males Can Be Actionable Same-Sex Harassment

Too often employers think heterosexual male-male or female-female horseplay or roughhousing, or "equal opportunity harassment" (someone who treats everyone badly), does not amount to sexual harassment under the law. In Barrows v. Seneca Food Corp., case number 12-970, the Second Circuit held in an unpublished decision that it can be. The decision can be read here.

Seneca Foods had been granted summary judgment under federal and state discrimination laws after Barrows alleged that a male supervisor sexually harassed him by touching his genitals and creating a hostile work environment by making vulgar comments. Barrows also alleged the supervisor made vulgar comments towards and touched other male coworkers, but female employees were not subjected to the same treatment. "There is no indication that [the supervisor] was homosexual or that he believed Barrows was a homosexual."

In granting summary judgment, the district court concluded that, under the Supreme Court's decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the claim failed as a matter of law because there was no evidence that Barrows suffered discrimination because of his sex (i.e., because he was male). The Second Circuit reversed.

Employers must remember that in Oncale, the Supreme Court stated "[t]he critical issue" for same-sex harassment claims is "whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g., a hostile work environment] to which members of the other sex are not." Oncale outlined three examples of evidence that could satisfy this test:

the harasser is homosexual (and, therefore, presumably motivated by sexual desire); a victim is "harassed in such sex-specific and derogatory terms by [someone of the same gender] as to make it clear that the harasser is motivated by general hostility to the presence of [someone of the same gender] in the workplace"; or there is "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." The Court stated that because a reasonable jury could find that direct comparative evidence shows the supervisor treated women better than men and that, therefore, men were "exposed to [a] disadvantageous term[ ] or condition[ ] of employment to which [women] were not," and the supervisor's "vulgar comments were sex-specific," and the supervisor apparently touched men but not women, the conduct could be found to be gender-based...