Late last month, a federal court in Connecticut took another look at the prohibition of discrimination “because of sex” with a case that has all the elements of a “can you believe it” fact-pattern that will surely be used for harassment training going forward.
The case involves a male employee posed for Playgirl nearly two decades prior and who, according to the decision, faced harassment from male and female co-workers.
But what does that phrase “because of sex” mean in today’s workplace climate? And should it be extended when we’re looking at issues of same-sex harassment?
The EEOC has been pushing an expanded view of this language, particularly as efforts to prohibit employment discrimination on the basis of sexual orientation have been floundering at the federal level.
(It should be noted that Connecticut law explicitly prohibits sexual orientation discrimination but there are case of male on male, or female on female harassment that don’t involve sexual orientation — like this case.)
But this case touches on same-sex harassment unrelated to the employee’s sexual orientation. The case came to my attention by David Wachtel in a detailed post that is worth a read. In it, Wachtel notes that in cases of same-sex harassment, there have been limited theories for employees to pursue.
Based on Supreme Court precedent in the Oncale case, a plaintiff would have to show either that:
- The harasser was motivated by sexual desire;
- The harasser was expressing a general hostility tto the presence of one sex in the workplace;
- One sex was treated differently from the other;
- Defiance of a sexual stereotype.
Wachtel argues that there is another kind of motivation that should also be covered by the “because of sex” principle. Likening it to the “Fifth Beatle”, he says that a court should focus on the employee’s sexual characteristics and that this case seems to expand on it.
For employers, though, the case is easier to understand without the legal theories, notwithstanding the complicated facts that involved, among other things, teasing by both male and female coworkers for nude photos that the employee has posed in Playgirl for nearly two decades ago.
Ultimately, the federal court said that there was sufficient evidence to send the case to a trial (thereby denying the employer’s motion for summary judgment at least partially).
For example, one woman referenced “the existence of pictures or searching for Mr. Sawka online” and said she saw “everything”. Another said that everyone had seen the pictures and that he had a “beautiful c***” and she just wanted to “f*** the s*** out of you.”
The court said that these comments and behavior (and other) could be viewed by a jury as being motivated by sexual desire and thus “because of sex”. And the comments by male co-workers about the “size and state of his genitals” could also be harassment “because of sex”. Thus, the court said, the employee could proceed with his hostile work environment claims.
It’s not a full victory for the employee however. The employee resigned and claimed that he was “constructively discharged.” The court rejected that claim because to proceed, the employee must produce “evidence of even more severe conditions” than those that create a question of fact on a hostile work environment claim.
Nevertheless, the case is a notable one that reinforces something that I talk about in sex harassment prevention training. Sex-based jokes, comments, and teasing by EITHER gender can lead to liability for an employer if that behavior interferes with an employee’s ability to do his or her job.