Last month, the Eleventh Circuit Court of Appeals issued an opinion in a Title VII sexual harassment claim that comes close to establishing a legal standard equating same and opposite sex conduct in the context of creation of a hostile work environment.  In Corbitt v. Home Depot U.S.A., Inc., the plaintiffs were two male store managers who alleged that a male regional human resource manager had engaged in a series of verbal and physical actions they found to be hostile and unwelcomed.  The alleged acts included compliments and flirtatious comments, questions over sexual preferences, invitations to go out for drinks, and occasional touching such as neck massages.

The Eleventh Circuit reviewed these allegations and concluded that they did not reach the level of hostility required for a claim of sexual harassment under Title VII.  The court characterized most of the behavior as flirtatious rather than overtly sexual in nature, and noted that employees are expected to put up with some degree of unpleasant and unprofessional behavior in the workplace.

The most interesting portion of the opinion dealt with dicta from the Eleventh Circuit discussing whether the fact that the plaintiffs were heterosexual should play a part in determining the hostility of the behavior from the gay manager.  The court stated although the plaintiffs may have been subjectively more uncomfortable due to the fact that the attention came from a gay man, this had no impact on the objective analysis of the hostility of the behavior.

Based on this reasoning, the sexual preferences of the plaintiff or defendant should not play a role in determining whether the behavior in question constituted a hostile working environment under Title VII.  The court indicated its intent to focus on the behavior itself without reference to the underlying sexual preferences of the respective parties.