Fourth Circuit Broadens Scope for Claims of Same-Sex Sexual Harassment

An appellate court decision on same-sex claims of sexual harassment has clarified and expanded on many points of such claims under the Civil Rights Act of 1964. Title VII forbids any discrimination on the basis of sex in the workplace, and this new decision will place considerably greater responsibility on employers to prevent violations.

In this case, brought before the Fourth Circuit of Appeals, the plaintiff alleged that his male supervisor had repeatedly subjected him to offensive remarks on his sexuality and physically assaulted him on multiple occasions. This led the plaintiff to file a lawsuit for sexual harassment against his supervisor.

However, the trial court ruled for the plaintiff’s employer, concluding that under the previous Supreme Court decision on same-sex sexual harassment, there must be one of three evidentiary routes present. These included:

• Credible evidence that the abuser is homo-sexual and conduct involved open or implicit proposals of sexual activities
• Conduct that indicates hostility to the sex of the victim in the workplace
• Evidence demonstrating that a harasser treats the members of one sex above the other within the workplace in mixed-sex work environments

The court found no evidence of these behaviors resulting in a ruling for the employer. However, the plaintiff appealed the decision. The Court of Appeals for the Fourth Circuit vacated the lower court ruling and remanded the case, concluding that the evidentiary routes contained in the former Supreme Court ruling are not exhaustive and that an employee may substantiate a claim of harassment through evidence of sex-stereotyping as well.

Further, the appeals court concluded that the prior precedent that claims of sexual harassment could not be based upon the sexual orientation of alleged victims should not apply based on the Court’s decision in Bostock v. Clayton County. The Fourth Circuit, in its decision, broadens the “sex” as a term for claims within Title VII and allows employees to prove claims of violations in many different ways.

In this case, the lower court had concluded that the supervisor’s assaults had not been openly sexual in nature. However, the Fourth Circuit concluded that they did not need to be in order to serve as evidence of a hostile workplace for the purposes of a Title VII claim.

The decision, in this case, should remind employers that laws on Title VII discrimination are rapidly changing and to review their policies for sexual harassment to ensure they remain compliant. Under Title VII, employers are obligated to investigate and take action to remediate instances of harassment. Personnel responsible for investigating these claims should be trained on and kept up to date with these new and significant changes.