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Same-Sex Harassment Not Actionable When Conduct Not Based on Gender

    Client Alerts
  • November 15, 2016

Employees can consider a working environment to be hostile due to sexual conduct, even when the workplace is all male or all female. The Equal Employment Opportunity Commission (EEOC) and federal courts have long held that sexual harassment engaged in by persons attracted to members of the same sex is actionable under Title VII, just as it is in an opposite sex context. Last month, the Third Circuit Court of Appeals reminded employers that in the absence of sexual attraction or treatment on the basis of gender, sexual harassment may not result in legal liability for the employer.

In Betz v. Temple Univ. Health Sys., the plaintiff was a nurse who alleged that she was subjected to a constantly sexually offensive working environment. She claimed that female nurses would joke with one another by “licking, groping, making lewd gestures, or pretending to grope each other’s breasts and genitals….” Although this activity was not aimed at the plaintiff, she alleged that she complained to her supervisor, and was eventually terminated in retaliation for making these complaints.

Before trial, the district court dismissed the harassment allegations on the basis that the plaintiff did not claim they were directed at her due to her gender. She appealed, and the EEOC filed an amicus brief on her behalf, taking the position that a generalized sexually hostile working environment violates Title VII even where the conduct is not directed at the plaintiff because of her gender.

This Third Circuit disagreed, affirming dismissal of the harassment claims. The court said that while the harassing conduct does not have to be directly targeted at the plaintiff to be actionable under Title VII, it must in some fashion be directed at her because of her gender. In opposite-sex harassment claims, this requirement is typically assumed, but for same-sex cases, the plaintiff must produce evidence that the harassment resulted from sexual attraction on the part of the harassers, hostility toward the presence of persons of that gender in the workplace, or motivation based on the plaintiff not conforming to gender stereotypes.

In this situation, the court characterized the plaintiff’s co-workers as “equal opportunity offenders” whose behavior was open to be seen by persons of all sexes and sexual orientations. The Third Circuit rejected the EEOC’s argument that Title VII protects employees from exposure to sexualized behavior in the workplace even absent any of the above factors. While most employers would quickly act to stop workplace behavior of the type complained of by the plaintiff, in some situations this behavior may not result in an actionable Title VII claim.