Labor & Employment Law Daily FedEx dock worker advances same-sex sexual harassment claim based on coworker comments directed only at males
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Monday, April 13, 2020

FedEx dock worker advances same-sex sexual harassment claim based on coworker comments directed only at males

By Wayne D. Garris Jr., J.D.

The employee alleged that he was subjected to sexual advances and vulgar comments every day while his supervisors laughed and, at times, joined in.

A federal district court in Connecticut denied FedEx’s motion for summary judgment against the Title VII and state law sexual harassment claims of an employee who alleged that shortly after he began working for the package delivery company, three of his coworkers made sexual advances toward him, showed him photos of naked men, and made vulgar references to his penis. This conduct, on several occasions, allegedly occurred in front of the employee’s supervisors, whom, he alleged, did not take any remedial action and laughed or joined in on the behavior. The direct sexual nature of the coworkers’ comments, combined with the fact that their conduct was only targeted at male employees, was enough to create genuine issues of fact as to whether the harassment was based on sex, said the court. Further, the employee’s testimony that the harassment occurred daily and that it escalated to physical threats after he complained to HR established that it was sufficiently severe or pervasive (Deprey v. FedEx Freight, Inc., April 8, 2020, Shea, M.).

The part-time dock worker at FedEx’s Winsor Locks, Connecticut, location alleged that shortly after he began his employment, one of his coworkers showed him a picture with “a hand holding a penis, bare male legs and one foot.” Another coworker and supervisor purportedly witnessed this and began laughing.

Harassment continues. After the photo incident, two more coworkers joined in the harassment and continued to make lewd comments to the employee indicating that they wanted to engage in sexual activity with him. The employee testified that his coworkers made inappropriate comments to “anyone they didn’t like” and that supervisors observed the behavior. Another coworker would frequently refer to the employee as “dock bitch” in front of supervisors. The employee claimed that supervisors would laugh or join in on the ridicule.

Investigation. The employee contacted the employer’s HR department and complained about the alleged harassment. An employee relations advisor initiated an investigation, interviewing the employee and several of his coworkers. At the end of the investigation, the advisor was unable to confirm the sexual harassment and hostile work environment allegations.

Lawsuit. The employee filed suit alleging that he was subjected to sexual harassment and a hostile work environment in violation of Title VII and the Connecticut Fair Employment Practices Act.

Same-sex sexual harassment. In Oncale v. Sundower Offshore Servs. Inc., the Supreme Court held that a plaintiff alleging same-sex sexual harassment must prove that “the conduct at issue . . . actually constituted discrimina[tion] . . . because of . . . sex.” Here, the court concluded that a reasonable jury could find that the employee experienced harassment because of his sex. The employee claimed that one of his coworkers who made sexual advances towards him was openly gay and repeatedly asked him “who has a small dick” and “who wants your co*k sucked” while “staring right at” him. A jury could infer that the coworker’s comments were motivated by sexual desire, and that they would not have been made if [the employee] were female.

The employee did not know the sexual orientation of the other two coworkers; however, the nature of their comments could lead a jury to infer they were motivated by the employee’s sex, the court reasoned. The coworkers made the same direct sexual advances and vulgar references to the employee’s penis as the purportedly gay coworker. While it was possible these comments were jokes and not actual sexual advances, factual issues remained as to whether the coworkers were motivated by sexual desire.

Primary target. And even if the comments were not motivated by desire, the Second Circuit has held that a jury could find that same-sex sexual harassment is based on sex where there is evidence showing that men were the primary targets of the harasser’s conduct. Here, the employee put forth evidence that three alleged harassers targeted men for sexual comments and conduct. One took a picture of another employee’s penis while he was using the bathroom and showed it to the entire dock; most of their vulgar comments involved references to male genitalia; and they showed the employee pictures of naked men. Thus, the court found a fact issue as to the harassers’ motivations and as to whether the employee would have been subject to the same treatment if he were a woman.

Severe or pervasive. The court next found that the employee provided sufficient evidence that his coworkers’ conduct and comments were both objectively and subjectively severe and pervasive. He testified that he was subjected to vulgar language, sexual advances, and name calling daily and that his supervisors joined in on this conduct. Further, after he complained, he was subjected to physical threats. The employee also alleged that a coworker shut off a propane tank on his forklift and that two of the alleged harassers drove their forklifts directly at him.

Employer liability. FedEx argued that it could not be held liable for any harassment by the employee’s coworkers because the employee relations advisor investigated his complaints. The court concluded, however, that the company failed to rebut the presumption of employer liability. The employee testified that two of his supervisors regularly witnessed his coworkers’ harassing conduct and laughed at their behavior or joined in. Although he claimed that one of his harassers was a supervisor, it was not clear whether he was supervisor at the time that he was allegedly harassing the employee. Lastly, FedEx failed to provide any evidence that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

The court also noted that a genuine fact dispute existed as to whether the employer took appropriate remedial action after the employee complained about the harassment. Some of the supervisors failed to intervene or ignored the employee’s complaints. The court also questioned the adequacy of the HR investigation into the employee’s complaints—the investigator did not investigate the alleged cell phone photos, no discipline was issued against the alleged harassers, and no steps were taken to protect the employee. Thus, a reasonable jury could conclude that the company’s response was insufficient.

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