Labor & Employment Law Daily ‘Merciless’ male-on-male harassment not just juvenile game, will go to trial
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Tuesday, August 28, 2018

‘Merciless’ male-on-male harassment not just juvenile game, will go to trial

By Kathleen Kapusta, J.D.

Although a juror might conclude that a male coworker’s actions toward another male employee—including that he repeatedly propositioned him, expressed his desire to make love to him, inquired whether he had ever had sex with a man, and frequently imitated humping him—showed that he simply hadn’t matured since high school or perhaps that his antics were part of a weird workplace bonding ritual, a reasonable juror would be justified to infer that he harnessed some level of sexual desire for either men generally or the employee in general, a federal court in Virginia observed. Finding also that the conduct was severe and pervasive and that a supervisor was aware of it and took no action to stop it, the court denied summary judgment on the employee’s Title VII sexual harassment claim. His retaliation claim failed, however (Funk v. BWX Technologies, Inc., August 22, 2018, Moon, N.).

Employed by the company since 1998, the employee alleged that beginning in 2011, his coworker began sexually harassing him and that it “got really bad” in 2014. Late that year, while the employee was bending down in the warehouse, his coworker wrenched his hands down his pants and pulled up his underwear. The turning point for the employee, however, was when the coworker purportedly opened his fly and said “taste this” while the employee was drinking from a water fountain. During 2014 and 2015, the coworker also allegedly made comments to the employee such as “have you ever made love to a man?”; “Do you want to get some?”; and that he wanted the employee “to be his bitch, go to jail with him, and spend all night in jail so he can make love to me.” He also purportedly declared that he was “queer” and claimed on numerous occasions that he and the employee had sex with each other.

Investigation. Although the employee complained to his supervisor, who also witnessed some of the harassment, he never took any action. In May 2015, the employee finally complained to HR, which initiated an investigation that resulted in the terminations of the coworker and the supervisor.

Because of sex? Moving for summary judgement on the employee’s hostile work environment claim, the employer first argued that the harassment was not because of his sex as there was no evidence the coworker was gay. But his own actions and deeds, said the court, would allow a reasonable juror to conclude otherwise. Not only did he proclaim that he was queer, he touched or acted in an overtly sexual way toward the employee, including imitating humping him, touching and pulling down his underwear, unzipping his fly near him and saying taste this, repeatedly propositioning him, and bragging about other men performing fellatio on him. “At bottom,” said the court, “guided by Oncale’s lights of ‘common sense’ and ‘appropriate sensitivity to social context,’ it is difficult to think of a more obvious and credible expression of sexual interest than [the coworker’s] repeated ‘explicit and implicit proposals of sexual activity’ and his sexualized touching of Plaintiff.”

Other conduct. Addressing incidents that happened after the coworker was fired, including two workers offering the employee bites of their corn dogs (with one placing the corn dog at his zipper), and a bathroom incident that occurred while the three were attempting to startle each other, in which one of the workers exposed himself to the employee, the court found these could not be the basis of liability for a HWE. The corn dog incident, all three acknowledged, was an ill-conceived attempt to get the employee to “loosen up.” And while the bathroom incident was more outrageous, there was insufficient evidence to conclude that the worker’s actions were “because of” the employee’s sex rather than “an example of a juvenile game between coworkers that became regrettably escalated by a series of tit-for-tats.”

Unwelcome? There was no evidence, the employer next argued, that the coworker’s conduct was unwelcome as the employee participated in the hijinks by calling him “Sherry,” “bitch,” “queer,” “gay,” or “faggot,” and talked about his sexual encounters with females. They pointed, however, to no authority showing that participation in some name-calling or horseplay immunizes explicitly unwelcome conduct from liability, said the court, noting that the employee was visibly upset when he complained to his superiors about the harassment, he complained to his supervisor multiple times, he asked the coworker to stop “humping” him, told him “don’t ever do that again” after he yanked his underwear, and told the coworker and others that his comments about oral sex were “sexual harassment.”

Severe and pervasive. Also rejected was the employer’s assertion that the conduct was neither severe nor pervasive. Reasoning that the circumstances here overwhelmingly favored a finding that it was both, the court noted that the employer picked out particular examples of the coworker’s conduct and crafted mitigating arguments about them—for example, that he only pulled up the employee’s underwear, that the employee sometimes himself uttered inappropriate gay slurs, or that the employee didn’t report every single example of harassment. “But a reasonable juror cannot ignore ‘all the circumstances’ and fail to consider the totality of [the coworker’s] actions,” the court explained.

Liability. And while the employer argued that it took strong action once the employee lodged his complaints higher up in the hierarchy, the problem, said the court, was the inaction of the employee’s supervisor. It should not be liable, the employer argued, because the employee failed to complain through the proper avenues prior to May 2015 as required by its internal policy. But this argument, said the court, “bleeds into the wrong analytical box: Whether a plaintiff took advantage of a complaint procedure is part of the Ellerth/Faragher affirmative defense to direct harassment by a supervisor, not the supervisor’s failure to act on harassment reported to him by others (to which the negligence standard applies).” And here, there was no real dispute that the supervisor was aware of the coworker’s harassment. Accordingly, the employee’s HWE claim could proceed to trial.

Retaliation. The employee also claimed that after he complained, he was subjected to the following retaliatory actions: other employees called him names such as tattletale, rat, and snitch after the coworker and supervisor were fired; his car was booted in the company parking lot; he was referred to counseling; he was required to undergo a security clearance review; and he was transferred to another building temporarily. The name calling, however, was nonactionable, said the court, noting that he was unable to identify who teased him and did not report any specifics to the employer. As for the transfer, it was not materially adverse as he continued to work and lost no wages or benefits as a result. And he admitted the booting of his vehicle was justified as the first time his handicap sticker had expired and the second time he failed to display the new, valid sticker on his car. Regarding his security clearance review and referral to counseling, the record was replete with evidence that the employee had stress and anger management issues, himself used inappropriate language at times, and even once vowed to kill someone. Thus, this claim was dismissed.

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