Kenneth E. Pitcoff and Kevin G. Faley, New York Law Journal

June 2, 2016

In the modern workplace, people undergo their workday under the assumption that it will be free of sexual harassment. We presume that when harassing behavior contains sexual connotations, that sexual harassment laws protect us. This is not always the case.

Title VII of the Civil Rights Act1 prohibits two forms of workplace sex-discrimination: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment usually receives Title VII protections. Hostile workplace environment harassment, however, tends to be more difficult to prove, especially in same-sex harassment cases. As such, the protection of Title VII does not always shelter everyone.

In Oncale v. Sundowner Offshore Services,2 the U.S. Supreme Court made clear that Title VII prohibits all discrimination "because of…sex," regardless of the form; a sex discrimination claim is not barred because the plaintiff and the harasser are members of the same sex. The court explained that Congress intended Title VII to bar discriminatory conduct motivated by the victim's gender, not necessarily sexual desire. However, it is well settled that Title VII does not provide a remedy for workplace discrimination based on an employee's sexual orientation.

Plaintiffs bringing a Title VII sex-discrimination claim must demonstrate that harassment occurred "because of…sex." Oncale offered that a plaintiff can (1) provide credible evidence that the harasser was homosexual; (2) demonstrate that the harasser was motivated by general hostility to the presence of one gender in the workplace or (3) offer direct, comparative evidence of how the alleged harasser treated both sexes differently in a mixed-sex workplace.

Plaintiffs must demonstrate that a workplace environment was sufficiently hostile to affect a term, condition, or privilege of employment by proving that the harassing conduct was (both subjectively and objectively) severe or pervasive. Plaintiffs are not required to demonstrate that the allegedly harassing conduct was both severe and pervasive, merely that a sufficient combination of these elements occurred so that conditions of employment were altered.

Though the Supreme Court's decision in Oncale provided three routes that create inferences of discrimination "because of…sex," it provided little else in terms of guidelines for court analysis. Every circuit has determined that Oncale's routes are not exhaustive, but their analysis of the "because of…sex" and "severe and pervasive" requirements are diverse.

Though the circuits do leave room for same-sex plaintiffs to proceed under other evidentiary routes, most courts based their summary judgment decisions on the extent to which a plaintiff's claim comported with one of the three Oncale routes. However, some decisions have lowered the bar for surviving summary judgment, often allowing other routes to support cases of same-sex harassment.

Gender Stereotyping

The "gender stereotyping" evidentiary route derives from a 1989 Supreme Court case dealing with an opposite-sex discrimination claim: Price Waterhouse v. Hopkins.3 In Price Waterhouse, the plaintiff alleged that she had been denied partnership because her coworkers did not believe that she adequately conformed to stereotypical perceptions of women. The plaintiff's complaint cited company partners' comments asserting she was "macho" and suggesting that she walk, talk, and dress more femininely. A plurality ruled in the plaintiff's favor, stating that "an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."

Most circuits have extended the Supreme Court's holding in Price Waterhouse to same-sex harassment cases. For example, in Nichols v. Azteca Restaurant Enterprises,4 the U.S. Court of Appeals for the Ninth Circuit held that the male plaintiff's claim satisfied the "because of…sex" requirement since he was harassed by male co-workers for acting too feminine.

Similarly, in EEOC v. Boh Brothers Construction,5 the U.S. Court of Appeals for the Fifth Circuit held that a reasonable fact-finder could find that the male plaintiff was discriminated against "because of…sex" since the harassing conduct was motivated by the belief that the plaintiff was not "manly." This route has been especially helpful to workplace harassment claims involving transgender individuals.

Physical Contact

Recently, courts in the Second and Fifth Circuits have found that contact with a person's sexual areas almost always meets both the "because of…sex" requirement and is severe enough to reach a jury.

The 'Because of…Sex' Requirement. The court's analysis of the sexual desire evidentiary route in the context of same-sex cases suggests that same-sex plaintiffs face a more difficult challenge in satisfying the "because of…sex" requirement than opposite-sex plaintiffs. As such, many courts implemented decisions reflecting this in the decade following Oncale. However, courts seem to be moving away from this heightened standard and finding more issues of material fact when analyzing if behaviors are "because of…sex."

Cases like the Fifth Circuit's EEOC v. Boh Brothers Const. Co. have clarified that "Although sexual harassment must be based on sex, it need not be motivated by sexual desire." Similarly, Second Circuit cases have begun following Redd v. New York Div. of Parole,6 which determined that the touching of an intimate area can always show that the harassing behavior was because of sex. Cases like Ashmore v. J.P. Thayer Co. and LaDay v. Catalyst Tech have ruled that discrimination can be found to be "because of…sex" by inferences drawn from the nature of the harassment.7

In Redd, a female supervisor touched a female employee on the breast three times in conjunction with other behavior the employee interpreted as sexual harassment. Because both the plaintiff and defendant were women, defendant argued that the touching was incidental, tantamount to horseplay, and not sexual harassment. The court disagreed, seeing no reason a jury could not find that the touching of gender-specific parts was because of sex.

Following Redd's reasoning, Barrow v. Seneca Food Corp.8 dismissed a motion for summary judgment in a case concerning two male co-workers whose claims included genital touching. Where in the past this claim might fall prey to summary judgment citing male tendencies for horseplay, the Barrow court held that this sort of severe application was not applied to women and more than just roughhousing when viewed in a light most favorable to the plaintiff.

Similarly, in Dick v. Phone Directories Co.,9 the U.S. Court of Appeals for the Tenth Circuit described the touching of intimate parts (even where motive seems more likely to be humiliation than sexual desire) as an act seldom carried out without some sort of sexual motivation. The Dick court reversed a motion for summary judgment because touching of intimate parts meant the touching was "because of…sex." Likewise, in Smith v. Rosebud Farmstand,10 one co-worker touching a man's penis and slapping his buttocks provided issues of fact material enough to survive summary judgment.

LaDay v. Catalyst Tech11 stated that to prove credible evidence of homosexual harassment when viewing evidence in the light most favorable to the plaintiff, one can rely on connotations, rather than more blatant conduct. Here, a boss fondled a man's anus and told him he was jealous of his girlfriend. The court determined that this was evidence of homosexual motive to survive a motion for summary judgment

The 'Severe or Pervasive' Requirement After 'Oncale.' Most courts interpret the "severe or pervasive" requirement as an acknowledgment that it is not uncommon for same-sex co-workers to tease each other in ways that while sometimes facially offensive or sexual, are not objectively severe enough to provide a basis for a Title VII claim. Thus, what may be objectionably severe in an opposite-sex case may not be objectionably severe in a same-sex case.

Because courts analyze the "severe or pervasive" requirement using their own "common sense" and an "appropriate sensitivity to social context," there are few general rules that apply to this issue in all same-sex cases. However, courts generally find that behavior is severe enough when there has been physical contact of a clearly sexual nature or of an intimate sexual body part.

In Oncale, the Supreme Court explained that the objective components to these "because of sex" and "severe and pervasive" requirements would ensure that ordinary horseplay between members of the same sex in the workplace would not give rise to a Title VII claim. As a result, courts in summary judgment proceedings have often decided that non-sexual horseplay between the same genders was meant to be protected by the ruling.

An example of this protection of "horseplay" is Shafer v. Kal Kan Foods,12 Thad Shafer's much larger, male co-worker often manhandled him. He forced him to touch his crotch with both head and hands and grabbed him in inappropriate ways. His harasser also directed sexually violent language at him. The court distinguished between horseplay and sexual harassment, stating that while Shafer might have an assault and battery case, he was not protected from this obviously sexual behavior by Title VII. Finding no way that fact finders could determine that behaviors like these were "because of…sex," the Shafer court (and many courts similarly) granted summary judgment for defendant.

However, Redd discusses the severity of intimate touching and held that: "[t]he repeated touching of intimate parts of an unconsenting employee's body is by its nature severely intrusive and cannot properly be characterized as abuse that is "minor." The court continued, "Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment."

If this is true, then any contact with an intimate body part meets (at least for the purpose of defeating summary judgment) the severe requirement. Additionally, discriminatory intimidation, ridicule, sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature in the workplace may be sufficiently extreme to alter the terms and conditions of employment.

The idea of intimate touching being used as evidence to prove severe cases of sexual harassment stems from some of the earliest interpretations of Oncale. Early cases from the period immediately following Oncale interpreted the ruling more broadly, finding that incidents of intimate touching could qualify as severe harassment, but were not embraced nationally. In Bacon v. Art Institute of Chicago,13 the Northern District of Illinois stated that physical touching in front of co-workers is so humiliating that it constitutes severe harassment. Breitendfeldt v. Long Prairie Packing Co.,14 from the U.S. District Court for the District of Minnesota, similarly found touching of sexual parts was severe enough to survive a motion for summary judgment.

While allowing more claims by way of these new evidentiary routes, some courts have become more lenient in their summary judgment decisions in these cases. Past courts had dismissed many same-sex harassment cases where material statements of facts arguably existed. These decisions often interpreted these facts in a light less favorable to the non-moving parties and determined that there were no issues of material fact for a jury to hear; many times they required proof of sexual desire. These heightened standards led to many dismissals in same-sex harassment cases, often reiterating the difference between bad-taste crude horseplay and harassment.

Instead of deciding these cases on summary judgment, courts have emphasized that a judge's role at the summary judgment stage is to identify factual issues, not to resolve them. If reasonable inferences drawn from the evidence could support a verdict for either side, summary judgment is unwarranted.

The harassment faced by the plaintiffs in Redd and Dick was more subtle than many previously dismissed cases, but the interpretation of summary judgment standards applied in their cases allowed them to survive the motion. Courts' willingness to view plaintiff complaints more favorably has increased the survival rates of same-sex harassment cases in multiple jurisdictions.


Courts across the country have begun applying more liberal standards to same-sex harassment cases that allow plaintiffs a better chance at defeating summary judgment. By interpreting the gender stereotyping theory more broadly, and by viewing intimate contact as almost per se "harassment," the courts have opened the door to an increase in same-sex harassment claims.


1. 42 U.S.C. §2000e-2(a) (2006).

2. 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998).

3. 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989).

4. 256 F.3d 864 (9th Cir. 2001).

5. 731 F.3d 444 (5th Cir. 2013).

6. 678 F.3d 166 (2d Cir. 2012).

7. 303 F.Supp.2d 1359 (M.D. Ga. 2004); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 476 (5th Cir. 2002).

8. 512 F. App'x 115 (2d Cir. 2013).

9. 397 F.3d 1256 (10th Cir. 2005).

10. 909 F.Supp.2d 1001, 1002 (N.D. Ill. 2012).

11. See supra note 8.

12. 417 F.3d 663 (7th Cir. 2005).

13. 6 F.Supp.2d 762 (N.D. Ill. 1998).

14. 48 F.Supp.2d 1170 (D. Minn. 1999).

Kenneth E. Pitcoff and Kevin G. Faley are partners at Morris Duffy Alonso & Faley. Anthony Riverso, a paralegal, assisted in the preparation of this article.

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