Human Resources News & Insights

Same-sex harassment isn’t always what you think

Here’s a head-scratcher: If a straight manager harasses only straight male employees, can one of those workers sue for same-sex harassment?

Jeffrey Barrows worked for food manufacturing company Seneca Foods under manager Victor Sanabria.

Sanabria was not the nicest manager, specifically to his male employees, according to court documents. Though Sanabria wasn’t homosexual, he allegedly:

  • made repeated vulgar comments to male staffers, including issuing commands for fellatio and using homosexual slurs
  • grabbed Barrows’ testicles during a work-related argument, and
  • hit Barrows and other male employees in the crotch on many occasions.

What qualifies as same-sex harassment?

It seemed Barrows grew tired of this treatment — so he sued Seneca Foods, claiming sex discrimination.

A district court ruled in favor of the company, saying there was no evidence that Barrows was discriminated against due to his sex (in other words, because he was male).

But an appeals court overturned the ruling.

In looking at the case, the court noted that the crucial issue in looking at same-sex harassment claims is “whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g., a hostile work environment] to which members of the other sex are not.”

The court outlined three examples of evidence that could satisfy this test:

  1. the harasser is homosexual (and, therefore, presumably motivated by sexual desire)
  2. a victim is “harassed in such sex-specific and derogatory terms by [someone of the same gender] as to make it clear that the harasser is motivated by general hostility to the presence of [someone of the same gender] in the workplace,” or
  3. there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”

The court pointed to the third example as to why it was ruling in Barrows’ favor. Sanabria treated women better than men, the court said, and, therefore, men were “exposed to a disadvantageous term or condition of employment which women were not.”

The takeaway

Attorneys at Goldberg Segalla highlighted how HR pros may need to expand their mental definition of harassment moving forward:

Employers typically perceive legal danger when employees act in a way that appears to be motivated by reasons of sexuality. In this case, if the supervisor had been perceived as a homosexual seeking sexual favors from the plaintiff, or if it had been perceived that he was harassing the plaintiff because he believed the plaintiff was homosexual, presumably the employer would have done something about it. But Barrows shows that any kind of harassing behavior can be sexual harassment if it affects only one gender and is sufficiently “severe or pervasive” to create a hostile work environment.

And R. Holtzman Hedrick of Barnes & Thornburg LLP noted that HR needs to look beyond the typical male-against-female harassment image that many have been trained for:

While employers often think of sexual harassment as males harassing females or even females harassing males, this case is a good reminder that employers must be diligent regarding harassment in all its forms, including the same sex variety. As long as behavior is motivated because of the victim’s sex, courts may well view it as harassment regardless of the genders of the parties involved.

The case is Barrows v. Seneca Foods Corp.

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