In its Oncale decision, the U.S. Supreme Court recognized that same-sex sexual harassment is actionable under Title VII. However, the Court also stated that the behavior would not be deemed sexual or gender harassment unless the perpetrator expresses sexual desire toward the victim, or is hostile to members of one gender in the workplace. As a result of this decision, in some cases employers have resorted to use of the "Equal Opportunity SOB" defense, demonstrating that the harasser was equally obnoxious and offensive to members of both sexes.
The successful use of this defense was illustrated earlier this month in a Sixth Circuit Court of Appeals decision, Kalich v. AT&T Mobility. In this case, the male plaintiff alleged that his male supervisor constantly called him female names, told him he dressed like a girl and had a dog (Yorkie) more suitable for a woman. He sued, claiming same-sex sexual harassment.
The Sixth Circuit affirmed summary judgment for the employer, noting that the plaintiff failed to meet either option under the Oncale test. The plaintiff admitted that the manager never expressed any sexual interest in him, or made sexual advances. While obnoxious, the comments made by the manager were not sexual in nature, and the plaintiff did not claim that he was the victim of sexual stereotyping. AT&T was also able to introduce evidence indicating that the manager was rude and aggressive toward all employees regardless of gender.
Although successful in this case, the "EOSOB" defense is one of last resort for employers. Early detection and intervention in cases of poor managers results in less likelihood that legal claims will be asserted, and reduced damages in those situations where litigation is unavoidable.