We just wrote about same sex harassment and asked whether it was actionable under Title VII. Title VII affords no protection against discrimination based upon sexual orientation, although an increasing number of states and municipalities have passed such laws.
As we said before, when there are allegations of same sex harassment asserted under Title VII, the courts must go through a tortured analysis to determine whether there was discrimination on the basis of sex. We cited one such recent federal case out of New York where a male employee complained that his male supervisor had sexually harassed him with vulgar comments, grabbing his testicles and hitting him and other male employees in the crotch.
In its analysis, the court asked whether the supervisor similarly subjected female employees to the same harassing acts, and held that “a reasonable jury could find that direct comparative evidence shows that [the supervisor] treated women better than men and that, therefore, men were ‘exposed to [a] disadvantageous term[] or condition[] of employment to which [women] were not.”
As if waiting for the result in that case, the EEOC just filed suit against a Texas-based company on behalf of a female employee who claimed a sexually hostile work environment. She alleged that her female supervisor “on an almost daily basis … engaged in misconduct such as frequently grabbing, poking and/or touching her breasts, buttocks and thighs in plain view of co-workers and the company’s directors. … The woman was referred to as ‘bitch’ and ‘slut’ by the supervisor almost every day at work.”
An EEOC attorney said that “No one should have to come to work every day feeling anxiety about whether she will be subjected to a sexually charged atmosphere of offensive verbal and physical misconduct.”
Let’s see if the court in this new case applies the same analysis: whether the supervisor treated male employees better than plaintiff, or if the court decides that the supervisor’s alleged acts in and of themselves constitute sex discrimination.