- Employees may establish a claim of sexual harassment based on a failure to conform to sex stereotypes under Title VII of the Civil Rights Act, even if the harassment does not occur in a mixed-sex workplace and a harasser is not motivated by general hostility toward one sex, the 4th U.S. Circuit Court of Appeals said in a May 21 decision (Roberts v. Glenn Industrial Group, No. 19-1215 (4th Cir. May 21, 2021)).
- The case involved a male former employee of a North Carolina-based underwater inspection and repair services company who alleged his manager, also male, made sexually explicit and derogatory statements towards him and physically assaulted him twice. The employee reported his manager to the company's HR manager on two occasions in 2015 and 2016. He was later terminated by his employer, which cited two 2016 safety incidents involving the employee that occurred months after the reports.
- The employee sued, alleging harassment and retaliation under Title VII, among other claims. A district court granted summary judgment in favor of the employer, stating that the employee's situation did not apply under the harassment framework articulated by the U.S. Supreme Court in Oncale v. Sundowner Offshore Services, Inc. The 4th Circuit affirmed summary judgment on the retaliation claim but vacated the court's ruling as to the employee's harassment claim and remanded it for further proceedings.
The 4th Circuit's analysis focused on the district court's reliance on Oncale in rejecting the employee's harassment claim.
In Oncale the Supreme Court pointed to three types of situations which could support a claim of same-sex sexual harassment, per the 4th Circuit: when there is "credible evidence that the harasser [is] homosexual" and the harassing conduct involves "explicit or implicit proposals of sexual activity;" when the "sex-specific and derogatory terms" of the harassment indicate "general hostility to the presence of [the victim's sex] in the workplace"; and when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a "mixed-sex workplace."
The district court found that neither of the three situations identified in Oncale applied to the employee's claim in Roberts because the court said there was no evidence that the employee's manager "was motivated by a general hostility to men in the workplace" and because the workplace in question was staffed exclusively by male employees. The manager's physical assaults were "not of a sexual nature," the court added, and it also cited a lack of evidence that the manager was gay or that the manager made "explicit or implicit proposals of sexual activity."
But the district erred in its interpretation of Oncale, the 4th Circuit said. It cited decisions by other circuit courts that showed Oncale's examples "were not intended to serve as an exhaustive list of the ways to prove that same-sex harassment was based on sex."
The 4th Circuit also cited the Supreme Court's ruling in Bostock v. Clayton County, Ga. The High Court's 2020 decision "makes clear that a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes," the 4th Circuit said.
Further, it said that though the manager's actions "were not overtly sexual, there is no requirement that they be so to be considered as evidence in support of a claim of a hostile environment based on sex." The district court failed, the 4th Circuit wrote, "to examine broadly whether [the manager's] physical assaults on [the employee] were part of a pattern of objectionable, sex-based discriminatory behavior."