Same-Sex Harassment: The Evolving Case Law
By Joseph A. White
In an earlier post—“Title VII Covers Male Employee Harassed for Being ‘Unmanly’”—we discussed a Fifth Circuit case in which the circuit court sided with a male employee whosemale supervisorharassed himfor “not being manly enough.” On May 5, 2014, a federal court in Pennsylvania reached a similar conclusion in another same-sex harassment case,Rachuna v. Best Fitness Corp., CIV.A. No. 1:13-cv-365.
Here’s the short version of the facts in Rachuna:The plaintiff, Rachuna, was a male personal trainer who worked at a gym owned by Best Fitness. Rachuna was successful and received several promotions over the years. Then, in February 2012, Taylor became his boss. Taylor was, to put it mildly, a bit primitive. He liked to comment on the size of male gym members’—uh—members; smack female gym members on their butts; and generally ogle and talk freely about the anatomies of various underage gym members, of both sexes.
According to Rachuna’s lawsuit, he complained about Taylor’s behavior to, in order, (1) Taylor; (2) Rachuna’smanager (who unfortunately happened to be Taylor’s wife); (3) Best Fitness’s CEO; and (4) Best Fitness’s Human Resources Director. Their response (again, in order) was to: (1) mockRachuna; (2) ignoreRachuna; (3) ignoreRachuna; and (4) fire Rachuna.
Rachuna sued Best Fitness alleging same-sex harassment in violation of Title VII. Essentially, he alleged that Taylor and Best Fitness subjected him to a hostile work environment, and eventually fired him, because he did not confirm to their stereotypes of his male gender. Rachuna’s protestations about Taylor’s behavior, Rachuna alleged, “may have projected to Taylor that he was a more sensitive type of male (showing his ‘feminine side’) and that such action only served to increase the severity and frequency of Taylor’s actions.”
Best Fitness moved to dismiss Rachuna’s lawsuit, but the United States District Court for the Western District of Pennsylvania denied its motion. First, it held that Rachuna stated a facially viable discrimination claim which could not be dismissed at the pleadings stage, prior to fact discovery. As the Court stated:
The [Third Circuit has] held that ‘a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. This statement clearly contemplates a fully-developed record and a motion for summary judgment or trial, not a motion to dismiss a complaint.
Second, the court rejected Best Fitness’ attempt to narrow the scope of actionable same-sex harassment to situations where male employeesare harassed for being effeminate.
Defendants argue that, although Plaintiff alleges that Taylor’s actions were motivated by a belief that he did not conform to the stereotype of a heterosexual male, his allegations are insufficient because he has not alleged that he was being harassed for being effeminate. Rather, they argue his claims are essentially that he was offended by Taylor discussing sex-related topics with him, such as asking him about his personal sex life and encouraging him to have more sex more often. However, Defendants cite no authority in support of this argument, only cases in which courts permitted claims to proceed when male plaintiffs proffered evidence that they were harassed for being effeminate and/or for exhibiting characteristics of the opposite gender. This does not mean that these are the only circumstances that can support a claim of same-sex harassment.
Expect to see that highlighted language again. As the same-sex harassment doctrine develops, defendant-employers will try to narrow its contours, while plaintiff-employees will try to expand it. Decisions like Rachuna are helpful to those on the plaintiff-employee side of the ledger because they suggest that same-sex harassment cases do not lend themselves to a one-size-fits-all approach. Decisions like Rachuna are also disturbing for employers who will justifiably wonder where courts will draw the line between same-sex harassment based on gender stereotype (illegal) and same-sex harassment based on sexual orientation (not illegal). Given a loose or malleable standard, after all, creative lawyers will have little trouble transforming claims based on non-actionable sexual orientation discrimination into actionable gender stereotype claims.
Joseph A. White is a litigator who represents individuals and businesses in complex business, employment and personal injury litigation