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The End of Locker Room Talk: Same-Sex Harassment Litigation Expected to Rise

It could now be illegal for one straight man to insult the machismo of another straight man because it may be considered sexual harassment.  Employers are seeing a rise in these same-sex harassment cases, including in the most “macho” of industries, like construction.

Federal civil rights statutes do not formally prohibit discrimination on the basis of sexual orientation.  But federal laws will likely change along with shifting cultural attitudes regarding sexual orientation and liberal trends in the law.  State laws, like those in California, do prohibit discrimination on the basis of sexual orientation, including the mere mistaken perception that an employee is gay, even if the employee is not actually gay.

However, if an employee is not actually gay, and is not perceived as gay, do the civil rights laws protect that employee for not acting “manly enough” or acting “heterosexual enough”?  The answer appears to be yes.

In the late 1980s, the famous accountancy firm Price Waterhouse was sued by one of its successful senior accountants because the firm denied her a promotion to partner.  The firm based its decision on her not acting “feminine enough.”  Supervisors noted that she did not wear enough make-up or jewelry.  A majority of the U.S. Supreme Court ruled that the employer’s denial of a promotion for these reasons amounted to “gender stereotyping” and therefore, it amounted to discrimination based on gender. 

This “gender stereotyping” theory has since empowered heterosexual men to sue for being teased for not being “masculine enough.”

For example, in Zalewski v. Overlook Hospital (1996), a hospital was sued because co-workers bullied a young man and teased him about being a 23-year-old virgin.  The Superior Court of New Jersey refused to throw out the employee’s case, in which he asserted he was teased by co-workers for acting effeminate.  The court believed that the employee stated a case for being harassed for not behaving the way co-workers “perceived a male should behave.”

California is split on the issue of machismo suits.  In Singleton v. United States Gypsum Co. (2006), factory workers teased the plaintiff by repeatedly calling him “Sing-a-ling,” which was a reference to a homosexual character in the movie “Life.”  As alleged in Singleton, co-workers teased that the employee should wear a G-string and tight jeans as well as perform homosexual acts on his supervisors.  The trial court granted summary judgment in favor of the employer because there was no indication that this harassment was due to the plaintiff’s sex or sexual orientation.  In a stunning ruling, however, the Court of Appeal reversed.  In a single sentence, the court concluded that because the co-workers attacked the plaintiff’s heterosexual identity, they would not have attacked a woman in the same way; ergo, the harassment was “because of” the plaintiff’s gender. 

Five years after the Singleton case, another California Court of Appeal asserted the opposite view.  In Kelley v. The Conco Cos. (2011), the plaintiff construction worker alleged he was bullied at the construction site by other men for having effeminate features.  One harasser allegedly called the plaintiff his “bit-h” and repeatedly said the plaintiff had a “nice -ss.”  The harasser allegedly said, in essence, that the plaintiff would look good in a woman’s clothes and that he would have sex with the plaintiff if he dressed like a woman.  Another co-worker allegedly said the plaintiff should perform oral sex on another male co-worker.  After the plaintiff complained, co-workers allegedly continued to torment him for three months, calling him a “bit-h,” “f-g,” and “fa--ot.” 

The trial court granted summary judgment dismissing all of the sex-based claims because there was no inference that the plaintiff was harassed “because of his sex.”  The Court of Appeal affirmed, distinguishing general harassment from illegal sexual harassment: 

“Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ’discriminat[ion] ... because of ... sex.’  We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. ’The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’”

Thus, “while the use of vulgar or sexually disparaging language may be relevant to show discrimination, it is not necessarily sufficient, by itself, to establish actionable conduct.”  The court acknowledged that workers are sometimes required to tolerate a certain amount of sexualized language: “[S]exually taunting comments by supervisors and employees were commonplace, including gay innuendo, profanity, and rude, crude and insulting behavior.”  The conduct in Kelley was certainly distasteful, but it was not illegal, the court decided.

The California Supreme Court has not settled the opposite views espoused by Singleton and Kelley.  A California judge is thus free to adopt either opinion. 

In 2013, however, the California Senate enacted SB 292, which took issue with some extraneous comments in Kelley that suggested same-sex sexual harassment had to be motivated by a sexual desire.  SB 292 passed and made clear that sexual interest is irrelevant.  But proponents of SB 292 stated that the bill was intended to end a split of authority between Singleton and Kelley.  The bill was purportedly enacted to “overturn the decision in Kelley.”  The change to the statute does not reflect a complete overruling of Kelley.  As such, the remaining force of Kelley is not clear. 

The national debate over mocking masculinity is best captured by a recent 5th U.S. Circuit Court of Appeals opinion.  Notably, this Sept. 27, 2013, case involved construction workers.  In EEOC v. Boh Brothers Construction, LLC,  the Equal Employment Opportunity Commission prosecuted a civil claim on behalf of a straight male construction worker because of allegedly taunting conduct by a straight male supervisor, who had called the employee “princess,” “fa--ot,” and “pu--y.”  The jury found in favor of the EEOC and issued a $201,000 award against the employer.  On appeal, sixteen  judges of the 5th Circuit -- representing Louisiana, Mississippi, and Texas -- voted.  Yet, the view in favor of gender stereotyping won out by a slight majority vote.

Six dissenting justices lamented the majority’s ruling and had this advice for employers: “The only way an employer can avoid the real possibility of suit and ultimate damages is to . . . make sure that nothing is uttered in the workplace that could possibly offend even a single person.”  That quip is humorous, but increasingly true.

The above illustrates that times have changed and will continue to change.  Employers must be cautious and recognize the old and new ways of tolerable communication between co-workers.  The trend shows that it is important for employers to be more vigilant in policing “locker room talk” in the place of employment to prevent potential liability.

Employment Law

Geoff Lee

Employment Law