Employee was mocked because of sexual orientation, not ‘observable’ behaviors, dooming Title VII claims
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Wednesday, September 25, 2019

Employee was mocked because of sexual orientation, not ‘observable’ behaviors, dooming Title VII claims

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

The employee previously took part in the teasing and horseplay among his coworkers, which made it difficult for him to show his coworkers’ behavior was objectively unwelcome, severe, or pervasive.

Granting summary judgement in favor of a silicon manufacturer, a federal district court Kentucky held that a former furnace operator’s discrimination claims were based on his sexual orientation, rather than his gender non-conforming behavior, and thus were not protected by Title VII. His harassment claim failed too, because the employee failed to establish the threshold requirements for a same-sex harassment claim, but even if he could, his coworkers’ insults and antics were not severe or pervasive, reasoned the court (Johnson v. CC Metals & Alloys, LLC, September 20, 2019, Russell, T.).

Rowdy workplace. The furnace operator at the employer’s silicon manufacturing plant alleged that teasing and horseplay were common among his coworkers. He claimed that coworkers made three comments about his car, clothing, and hobbies with respect to his sexual orientation. These comments did not upset him, he said, testifying that he occasionally joined in, including sending sexually and racially explicit photos that he found funny to his coworkers.

No more fun. But his relationship with his coworkers changed after an incident between him and another employee about who could use a work bench. He alleged that his coworkers erased his name from the union’s overtime sign-up sheet and wrote slurs next to his name, at least 15-20 times, although he didn’t know who was responsible. He believed the offensive language was written because people had assumed his sexual orientation. The employee filed suit alleging sexual harassment or sex discrimination under Title VII and sex discrimination under the Kentucky Civil Rights Act.

Vickers. Although sexual orientation discrimination is not actionable under Title VII, the statute prohibits an employer from making employment decisions based on sex stereotyping. In Vickers v. Fairfield Medical Center, the Sixth Circuit held that sex stereotyping is focused on "characteristics that were readily demonstrable in the workplace," instead of the slurs and insults about his perceived sexual practices to which the plaintiff in Vickers was subjected. In a later decision, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit held that the "demonstrable in the workplace" standard was not binding, which led to several conflicting district court opinions.

"Observable at work." The employer argued that his real claim was sexual orientation discrimination that he was trying to recharacterize as a sex-stereotyping claim; the employee then responded that R.G. overruled Vickers and whether the harassment was based on his mannerisms or sexual orientation was irrelevant. Stating that Vickers had not been overruled, the court held that in order to survive summary judgment, the employee had to show that he did not "conform to traditional gender serotypes, in an observable way, and that these characteristics were the basis of the harassment." The employee failed to meet the "observable at work" standard because the alleged harassment was based on his perceived sexual orientation, not his failure to conform to gender norms. The employee’s resignation email cited sexual orientation discrimination as the basis for his departure, and he complained that the employer did not support him despite its knowledge of harassment because of his sexual orientation.

Coworkers insults. His coworkers’ comments about his hobbies, his car, and his clothes did not establish sex stereotyping either. The court noted that those comments could have been based on the employee’s gender non-conforming behavior, but the employee testified that the comments didn’t upset him and that they were based on his perceived sexual orientation.

Same sex harassment. Similarly, the court found that the employee presented no evidence to establish a same-sex hostile work environment claim. First, he failed to identify which of his coworkers made comments about his car, clothes, or lack of hunting, or which individuals wrote the sexual slurs on the overtime sheet, so he lacked evidence to suggest that the alleged harassers acted out of sexual desire. Second, he offered no evidence that the alleged harassment was motivated by a general hostility to the presence of men in the workplace. Finally, there was no direct comparative evidence regarding how the alleged harassers treated members of both sexes in the workplace.

Not severe or pervasive. Even if the employee could establish a claim for same-sex harassment, the court concluded, he could not prove that his coworkers’ conduct was sufficiently severe or pervasive. First, the comments occurred at isolated and sporadic instances over an 11-month period. Even though the sexual slurs appeared on the overtime sheet at a greater frequency, they were not coupled with any physical interaction. Finally, the employee testified that everyone he worked with "horse-played" and that he participated by sending sexually and racially graphic pictures to his coworkers. Based on these factors, the employee could not show that the alleged harassment was objectively severe or pervasive.

The case is No. 5:18-CV-130.

Attorneys: D. Wes Sullenger (Sullenger Law Office, PLLC) for David T. Johnson. Kyle D. Johnson (Frost Brown Todd LLC) for CC Metals & Alloys LLC.

Companies: CC Metals & Alloys LLC

Cases: CoverageLiability SexDiscrimination SexualHarassment Discrimination KentuckyNews

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