4th Circuit Broadens View of Same-Sex Harassment
Author: Emily Scace, XpertHR Legal Editor
May 25, 2021
Same-sex sexual harassment can take many forms, the 4th Circuit Court of Appeals recently concluded, and liability for employers under Title VII is not limited to the three specific situations highlighted by the Supreme Court in a 1998 case.
The 4th Circuit case, Roberts v. Glenn Industrial Group, Inc., concerned an employee who alleged that his supervisor repeatedly made homophobic, derogatory and sexually explicit remarks toward him and physically assaulted him at least twice. Complaints to upper-level management and human resources were dismissed or ignored.
When the employee sued Glenn Industrial in federal district court alleging same-sex sexual harassment, the court found that because the harassment he described did not align with any of the three situations described in Oncale v. Sundowner Offshore Services, he was not entitled to relief. Oncale determined that a successful same-sex harassment claim may result when the harasser is gay and the harassing conduct involves proposals of sexual activity, when the harassment indicates hostility to the presence of a particular sex in the workplace, or when the harasser treated members of one sex worse than the other.
However, on appeal, the 4th Circuit held that the examples in Oncale were just illustrations and were not intended to represent the only avenues to establish same-sex sexual harassment - an interpretation that several other federal appeals courts, in addition to the EEOC, have also endorsed. Therefore, the court concluded that the lower court had improperly dismissed the employee's claim.
In examining the plaintiff's claim, the 4th Circuit also looked to the Supreme Court's 2020 decision in Bostock v. Clayton County, which held that Title VII's prohibition on sex-based discrimination extends to discrimination based on sexual orientation and gender identity. Harassment based on an employee's perceived sexual orientation or perceived failure to conform to sexual stereotypes falls under this umbrella.
The holding offers an important reminder for employers that sexual harassment is not limited to situations in which the offender makes unwanted sexual advances or comments of an explicitly sexual nature. If harassing conduct is based on an individual's sex, sexual orientation, gender identity or gender expression and is sufficiently severe and pervasive that it creates a hostile work environment, an employer may be liable for failing to take steps to prevent and correct such conduct.