In its 1998 Oncale decision, the U.S. Supreme Court found same sex sexual harassment to violate Title VII where the harassing behavior is engaged in because of sex. Last month, the Fifth Circuit Court of Appeals concluded that the plaintiff in a same sex harassment case does not have to prove that the alleged harasser was homosexual in order to prevail.

In Cherry v. Shaw Coastal, Inc., the plaintiff alleged that his male supervisor engaged in a series of sexually harassing behaviors, including touching, suggestive comments and lewd text messages. He sued, claiming that the employer had not taken these complaints seriously, or acted in a timely manner to stop the harassing conduct. In response, the employer claimed that the plaintiff had not met the standard set forth in Oncale for same sex harassment claims, because he never alleged or provided evidence of the supervisor's homosexuality. The employer characterized the conduct as horseplay, not engaged in because of sex.

The Fifth Circuit rejected this argument, reversing a grant of summary judgment for the employer. Credible evidence of the alleged harasser's homosexuality is only one way to demonstrate that the conduct complained of was engaged in because of sex. If the conduct itself demonstrates that the harasser intended to have some kind of sexual contact with the plaintiff, courts will assume that it is perpetrated because of sex. In this case, the supervisor's alleged touching and explicit sexual comments easily met this test.

Employers should equally investigate and remedy any claim of sexual harassment, regardless of the genders of the complaining and accused parties.