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Male Harassment in Mixed Gender Workplace Was Sex Harassment

Working as a butcher for Rosebud Farm, Robert Smith had his genitals and buttocks grabbed by his male co-workers on a consistent basis over a four-year period. These same co-workers also repeatedly mimed oral and anal sex. This type of conduct occurred on a consistent basis over a four-year period. Mr. Smith’s supervisor not only was aware of the behavior but actually participated a couple of times. These co-workers also targeted Mr. Smith with racial epithets and told him to “go back to Africa.” No action was taken in response to Mr. Smith’s complaints about the conduct. After he filed discrimination charges with the Equal Employment Opportunity Commission, the employees were told to “stop goofing off” but instead they retaliated through intimidation tactics. They banged their large butcher knives at him in addition to slashing his tires and cracking his windshield.
Mr. Smith prevailed in his jury trial. In its appeal to the Seventh Circuit Court of Appeals, Rosebud argued that Mr. Smith failed to show that he was discriminated against based on his sex. Rosebud did not dispute the harassment but rather that the harassment was based on sex. Sexually offensive conduct does not necessarily violate Title VII. In this case, however, Mr. Smith was able to show that no women, only men, were subjected to the sexually offensive conduct. Witnesses at trial recalled that men were grabbed by the genitals but not one witness suggested that any female employee was subjected to similar conduct. Rosebud was a mixed-sex workplace and as only the men were harassed, a jury could have reasonably concluded that the harassment of Mr. Smith was based on his sex. The verdict was affirmed.