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Fourth Circuit Allows New Type of Same-Sex Harassment Claim Based on Stereotyping

    Client Alerts
  • May 28, 2021

In its Oncale decision, the U.S. Supreme Court recognized that same-sex sexual harassment violates Title VII’s sex discrimination prohibition. In that case, the court said that plaintiffs can demonstrate same-sex harassment in one of three ways: first, that the harasser is gay and engaged in harassing conduct involving sexual activity; second, through general hostility to the presence of people of one sex in the workplace; third, that members of one sex are treated materially worse in a mixed-sex work environment.

What happens, however, when a harassment victim’s claims do not fall into any of these three categories? Last week, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) concluded that a plaintiff can demonstrate sex discrimination and harassment under Title VII based on his failure to adhere to a sex stereotype.

In Roberts v, Glenn Industrial Group, Inc., the plaintiff was a diver who worked in an all-male work environment. He claimed that his supervisor has engaged in a series of physical and verbal assaults, using derogatory terms for homosexual people. The district court dismissed the complaint on the basis that the alleged conduct did not fit into any of the three avenues set out in Oncale. He appealed, and the Fourth Circuit reversed the dismissal, remanding the case for jury trial.

In its decision, the court noted that Oncale is not the exclusive means by which a plaintiff can demonstrate same-sex harassment. Under the Supreme Court’s Price Waterhouse and, more recently, its Bostock decisions, plaintiffs can show same-sex harassment by providing evidence indicating that the conduct was based on sex stereotyping. In other words, the plaintiff was subjected to the alleged harassing conduct because he failed to adhere to traditional male stereotypes. The physical assaults alleged could rise to the level of a hostile and offensive work environment under Title VII even if they did not involve sexual conduct.

The Fourth Circuit joins other federal appellate courts in recognizing this separate path for proving same-sex discrimination and harassment. Employers should not rely on technical legal arguments to avoid lawsuits based on harassing conduct related to an employee’s actual or perceived sexual orientation or gender identity.