Although an increasing number of states and municipalities have passed laws barring discrimination based upon sexual orientation,  Title VII affords no such protection.  When there are allegations of same sex harassment asserted under Title VII, the courts must go through a tortured analysis to determine whether it is actionable under Title VII, i.e., whether there was discrimination on the basis of sex.

In one such recent case out of New York, a male employee complained that his male supervisor had sexually harassed him.  In the graphic language quoted by the Court:

“[The supervisor] constantly made vulgar comments, such as “suck my dick,” “come here and give me a blowjob,” and “[f]aggot, get the shovel [and] go out there and clean the drain out,” to [Plaintiff] and . . . to some, but not all, male employees. . . . The record further indicates that [the supervisor] grabbed [Plaintiff’s] testicles on one occasion, during a work-related argument, and that [the supervisor] hit [Plaintiff] and other male employees in the crotch on other occasions. There is no indication that [the supervisor] was homosexual or that he believed [Plaintiff] was a homosexual.”

The lower court held that there was no evidence that Plaintiff had suffered actionable discrimination because of his sex (i.e., because he was male).  He was harassed, yes, but not based upon his gender, according to the court.

However, the appeals court reversed, citing the Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), where it was held that there was no “categorical rule” excluding same-sex harassment claims from the coverage of Title VII, but that “[t]he critical issue” for same-sex harassment claims is “whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g., a hostile work environment] to which members of the other sex are not.”

Another way of looking at the it, the issue is whether the supervisor similarly subjected female employees to the same harassing acts.  In this case, the appeals court 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.’ …

[Plaintiff] testified in his deposition that [his supervisor] directed vulgar comments toward many of his male coworkers and struck the genitals of numerous male employees, but female employees at [the company] were apparently not subjected to the same treatment. …  The evidence here, viewed in the light most favorable to [Plaintiff], similarly demonstrates that men were the primary targets of [the supervisor’s]  conduct, and, therefore, a jury could reasonably find that the conduct was gender-based. A reasonable jury could also consider the fact that some of [the supervisor’s] vulgar comments were sex-specific and that he frequently touched male-specific (and sex-related) body parts.”

Given the facts of this case, you may be excused if you think that the necessary legal analysis for the court to get to its decision is somewhat strained and absurd.