Last month, the Eastern District Court of Tennessee ruled that a male sales clerk at Dollar General may have his Title VII hostile work environment claim heard by a jury.  In Johnson v. Dollar General Corp., the court denied in part the defendant’s motion for summary judgment, holding that a jury could find that the plaintiff was subjected to sexual advances by a co-worker and the store’s assistant manager, based on sexual desire and, therefore, based on the plaintiff’s sex.

During the two months that Plaintiff was employed at the store, he was allegedly subjected to inappropriate comments from his harassers, both male and allegedly homosexual, about the size of Plaintiff’s genitalia and “being every gay person’s dream.”  On several occasions, both men touched the Plaintiff’s stomach and once, the assistant store manager allegedly pulled down Plaintiff’s pants from behind and walked away laughing.  The final incident involved Plaintiff’s co-worker allegedly chasing Plaintiff around the store until Plaintiff returned to the office with the co-worker and store manager.  The store manager allegedly grabbed and held Plaintiff’s arms while the co-worker attempted to pull down Plaintiff’s pants.  Plaintiff struggled and the two men laughed and eventually left the office.  Plaintiff left and did not return to work after this incident.

The United States Supreme Court previously held in Oncale v. Sundowner Offshore Services that there are three ways a plaintiff may establish a same-sex hostile work environment claim: “(1) where the harasser making sexual advances is acting out of sexual desire; (2) where the harasser is motivated by a general hostility to the presence of men in the workplace; and (3) where the plaintiff offers direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”  In Johnson v. Dollar General, the court found that because the alleged harassers’ actions were only directed at the Plaintiff and because both harassers were believed to be homosexual, a jury could determine that the harassers were making sexual advances based on sexual desire, which would in turn be based on Plaintiff’s sex.