Fourth Circuit Expands Evidentiary Routes for Establishing Same-Sex Harassment

The U.S. Court of Appeals for the Fourth Circuit joined several sister circuits in finding that a plaintiff has routes beyond the three identified by the Supreme Court in its Oncale v. Sundowner Offshore Servs., Inc. decision to establish a same-sex harassment claim.

Background of the Case:  In Roberts v. Glenn Industrial Group, Inc., the plaintiff was a field employee of a company that provided underwater inspection and repair services to utility companies. All of its field employees were male. The plaintiff alleged that, throughout his employment, his supervisor repeatedly called him “gay” and made sexually derogatory and explicit remarks to him. The supervisor also physically assaulted him on two occasions, including by putting him in a chokehold. The plaintiff complained to his supervisor’s supervisor on multiple occasions, but was told to “suck it up.” He also complained to Human Resources on at least two occasions to no avail. He was then terminated following two workplace safety incidents, and he sued for harassment in violation of Title VII.

The trial court threw out the harassment claim, finding that the plaintiff had not met any of the three evidentiary routes for same-sex harassment identified by the Supreme Court in Oncale: (1) when there is credible evidence that the harasser is homosexual and explicitly or implicitly proposes sexual activity; (2) when the harassment indicates general hostility to the victim’s sex in the workplace; and (3) when comparative evidence shows that the harasser treated one sex worse than the other in a mixed-sex workplace.

The Court’s Decision. On appeal, the Fourth Circuit reversed the trial court’s decision, finding that the three routes set forth in Oncale are not exclusive, and that, under another Supreme Court case (Price Waterhouse v. Hopkins) same sex harassment can also be established with evidence of sex-stereotyping. As in this case, the plaintiff shows that he was subjected to discrimination on the basis of his failure to conform to sex stereotypes – an approach that was broadly reiterated by the Supreme Court in its recent Bostock v. Clayton County decision, in which it recognized that Title VII’s definition of “sex” included sexual orientation and transgender status.

Lessons for Employers. This case is significant in that it supports a trend – although not unanimous – of expanding the means by which plaintiffs can establish claims of same-sex harassment, which is not unexpected given the greater acceptance and voice of the LGBTQ+ community. This means expanded risk of liability for employers facing same-sex harassment claims. But this case also offers a more general warning to employers to not tolerate or ignore inappropriate conduct in the workplace, especially by managers, and to respond promptly and effectively to employee complaints of such conduct.