Don’t assume that men can’t sexually harass other men (or women can’t harass other women), or otherwise discriminate against them in violation of the civil rights laws. In August of this year, the Seventh Circuit Court of Appeals issued a decision involving allegations of sexual harassment by a male employee against his male coworkers and supervisors in a small grocery store. Smith v. Rosebud Farm (7th Cir, 8/2/2018). Smith, a butcher, asserted that soon after he became employed, male coworkers behind the meat counter were grabbing his genitals and buttocks, and repeatedly mimed oral and anal sex. Smith’s supervisor was found to not only have been aware of the harassment, but also to have been a participant upon occasion. Smith eventually filed charges with the EEOC alleging sexual harassment and race discrimination. Although the supervisor told the coworkers to stop “goofing off” they began banging their meat cleavers and carrying large knives by Smith while pointing at the meat trays they carried.
The appellate court upheld the jury verdict, finding that the behavior showed Smith was being mistreated on the basis of his sex — male. Smith had offered evidence that only men, and not women working in the grocery store, experienced the same kind of treatment that he suffered. As a result, the jury was allowed to conclude that the discrimination was based upon sex. The appellate court also held that if this had been an all-male environment, with no females to whom Smith could compare himself for evidentiary purposes, there would be no inference of sex discrimination as was allowed by the court here.
What should you take away from this decision? Any time the reason for someone’s treatment at work can be said to have been based on or because of that person’s gender, there is a potential risk for sexual harassment or other forms of sex discrimination. Keep in mind, sexual harassment is just one form of sex discrimination. So, if harassment is based on a person’s gender, such as reflected in the Smith case with regard to physical actions directed at his genitalia, there is the potential for sexual harassment liability regardless of the gender of the perpetrator(s). Be wary of assuming that just because only men or only women are involved in workplace misconduct, or just because no one is asking for sex, that discrimination liability is precluded. The span of sex discrimination and sexual harassment goes far beyond those traditional paradigms.