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Not all offensive conduct creates liability

by on
in Discrimination and Harassment,Human Resources

Some employees believe that any sexual comment equals sexual harassment. That’s not true, especially when it involves so-called same-sex harassment. While you shouldn’t ignore such conduct for morale and productivity reasons, rest assured that it generally won’t make your organization liable for a big jury award.

Recent case: Robert worked at Bimbo Bakeries. When some of his male co-workers began passing around a nude photo of a man who resembled Robert, he became upset. The angrier he got, the more the taunting continued, until his tormenting co-workers started teasing that Robert was homosexual, based on his reaction to the photo.

After getting into an altercation with one of his co-workers, Robert complained internally. The bakery investigated and ultimately disciplined the co-worker; Robert received a lesser punishment.

Robert then sued, alleging sex ­discrimination and harassment.

But the court threw out his case. It explained that not all same-sex harassment is illegal. When, as here, there is no proof that the co-workers themselves were gay and targeted Robert because he was a hetero­sexual, there is no sex-based har­­assment. The behavior may be ugly and disruptive, but it isn’t illegal under federal law because Title VII doesn’t cover sexual orientation.

At best, Robert was targeted because of his sexual orientation—straight—and not because of his sex—male. (Dingle v. Bimbo Bakeries, No. 11-CV-2879, ED NY, 2012)

Final note: Male-on-male sexual harassment is illegal if any of these apply:

  • The harasser is homosexual and the harassment is motivated by sexual desire.
  • The harassment is motivated by general hostility to males in the workplace.
  • The harassment was targeted only at males and not females.

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