As courts define same-sex harassment, beware behavior that ...

Ever since the United States Supreme Court decided its first same-sex harassment case, employers have struggled to define what is illegal same-sex harassment and what?s not. Now the 2nd Circuit Court of Appeals has provided some employer guidance in a case involving male-on-male harassment.

Recent case: Jeffrey sued his em??ployer after enduring what he described as his supervisor?s outrageous same-sex har??assment. Jeffrey claimed that over several years, his boss regularly grabbed Jeffrey?s crotch, made sexual comments and generally picked on him. Jeffrey recounted numerous sexually oriented insults and derogatory statements such as ?faggot, get the shovel and clean out the drain.? Plus, Jeffrey said that during a work-related argument, the supervisor grabbed Jeffrey?s testicles.

Jeffrey also described his supervisor?s behavior toward other male employees. They, too, were allegedly subjected to grabbing and touching of their private parts. Women, however, were apparently never targeted and were able to go about their business without interference.

The trial court tossed out Jeffrey?s case, reasoning that because neither Jeffrey nor the supervisor were homo??sexuals, the behavior Jeffrey described wasn?t related to Jeffrey?s sex or sexuality. The court said it was merely crude and unprofessional.

The 2nd Circuit Court of Appeals disagreed. It pointed out that Jef??frey?s sex likely was a factor in the harassment, since women weren?t similarly singled out. The court sent the case back for a jury trial. It also noted that if what Jeffrey said was true, the supervisor?s behavior could meet the test for pervasive or severe harassment.

The court also rejected the em??ployer?s argument that it wasn?t liable because Jeffrey hadn?t complained about his supervisor. Jeffrey told the court that he spoke with several other managers about the problem and had either been told there was nothing that could be done about it or was simply ignored. (Barrows v. Seneca Foods Corporation, No. 12-970, 2nd Cir., 2013)

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