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Circuit Court Confirms Multiple Ways To Establish Same-Sex Harassment

Chazz Roberts worked for Glenn Industrial as a diver’s assistant. The company handbook included a “no harassment” policy requiring all complaints be made to CEO Richard Glenn. Robert alleged his supervisor, Andrew Rhyner, harassed him based on his sex. Rhyner allegedly called him “gay” and made sexually offensive and derogatory comments to him, including calling him a “f***ing retard” and asking “how many d**** [he] would s*** for money.” Rhyner allegedly physically assaulted Roberts on two occasions, slapping him both times. In one of those instances, Rhyner purportedly put him in a chokehold. Roberts complained multiple times to supervisors but not to Glenn. He also complained to Glenn’s wife, the human resources manager. The company did not take action in response, and Roberts continued to be harassed. After some other workplace issues, Glenn terminated Roberts.

The Fourth Circuit Court of Appeals reviewed the dismissal of Robert’s sex discrimination claim on appeal. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court issued its primary decision defining the parameters of same-sex harassment. In that decision, the Court identified three evidentiary routes to prove same-sex harassment: “a) there is credible evidence the harasser is homosexual and the harassing conduct involves “explicit or implicit proposals of sexual activity”; b) when “sex-specific and derogatory terms” of the harassment indicate “general hostility to the presence of the [victim’s sex] in the workplace”; and c) when the comparative evidence shows the harassers treated members of one sex worse than the other in a mixed-sex workplace.” The Fourth Circuit court found the Supreme Court did not intend for these three examples to be the exclusive means to establish same-sex harassment. In fact, the employee’s situation in Oncale did not fall within any of those three examples. Thus, the Fourth Circuit held additional forms of proof may be used to demonstrate same-sex harassment, including proof of discrimination based on an employee’s failure to conform to sex stereotypes. This ruling aligns with decisions made by the majority of other circuit courts.