Same-sex sexual harassment violates Title VII. In its Oncale decision, the U.S. Supreme Court stated that in order to be actionable, the harassment must be based on the victim's gender. In the same-sex context, this can be demonstrated by showing that the alleged harasser is sexually attracted to the victim, or otherwise harassed him based on hostility toward his gender.

Last month in an unpublished decision, the Second Circuit Court of Appeals concluded that same-sex harassment claims fell under Title VII despite the lack of evidence of homosexuality or overt hostility toward other males. Barrows v. Seneca Foods Corp. included allegations that a male supervisor would use constant sexually vulgar terms with male employees, and repeatedly grabbed their genitals. The plaintiffs did not contend that this action was based on sexual attraction, and the trial court dismissed the claims based on the lack of evidence that the actions were motivated by the victim's gender.

The Second Circuit reversed the dismissal of the claims and remanded the case for jury trial. The court noted that female coworkers never claimed that the alleged harasser treated them in the same manner as males. The Second Circuit concluded that this disparity of treatment between males and females was enough to demonstrate that the harassment could have been based on the victim's gender. Therefore, despite the absence of direct evidence of hostility towards the presence of males in the workplace, the alleged disparate treatment of employees of different genders was enough to allow the case to move forward for trial.