The Fourth Circuit Court of Appeals, which presides over federal district courts in North Carolina, South Carolina, and Virginia, recently joined several other circuit courts in determining that plaintiffs who allege same-sex harassment under Title VII of the Civil Rights Act have several available evidentiary options for proving their claims. In so holding, the Fourth Circuit ruled that the three options articulated in the 1998 United States Supreme Court decision of Oncale v. Sundowner Offshore Services to prove such claims were not the exclusive avenues available for same-sex harassment causes of action.

In the case of Roberts v. Glenn Industrial Group, Inc., the plaintiff was hired as a diver’s assistant and received and signed a company handbook that included a “no harassment” policy.  The policy required that all complaints of sexual harassment be reported to the company’s CEO.  The plaintiff alleged that his male supervisor repeatedly made sexually explicit and highly derogatory remarks towards him and physically assaulted him at least twice. The plaintiff complained to several supervisors but not to the company’s CEO. No action was undertaken in response to the plaintiff’s complaints, and the harassment continued.

The plaintiff was thereafter involved in a work-related accident, and the CEO terminated his employment the following month after the plaintiff exhibited erratic behavior. As a result, the plaintiff filed suit in the United States District Court for the Western District of North Carolina, claiming same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act. Relying on Oncale, which articulated three evidentiary routes by which a plaintiff could prove that he was the victim of same-sex harassment, none of which were evident in this proceeding, the district court dismissed the plaintiff’s complaint.

Harassment Claim Survives Dismissal

The Fourth Circuit reversed the lower court’s decision on the plaintiff’s harassment claim, stating that “[We] recognize that additional forms of proof beyond those identified in Oncale are available to plaintiffs to demonstrate that the same-sex harassment they suffered was based on sex, including proof of discrimination based on a plaintiff’s failure to conform to sex stereotypes.” The Court rejected the employer’s argument that the plaintiff’s claim fails because he did not articulate or prove any of the three elements recited in Oncale, a case that involved overtures of sexual activity.

Retaliation Claim Fails

The Fourth Circuit affirmed the district court’s dismissal of the plaintiff’s claim of retaliation, reasoning that although the plaintiff complained to multiple parties about the alleged harassment, the CEO did not have actual knowledge of the plaintiff’s complaints when he terminated his employment and constructive knowledge of protected activity based on complaints made to supervisory employees is not enough to support a causal link between that activity and a decisionmaker’s adverse employment action.

The Court further reasoned that there was a lack of temporal proximity between the plaintiff’s last complaint of harassment and the termination of his employment, which occurred three months later. Consequently, the plaintiff’s termination “did not closely follow a protected activity, and thus does not present a circumstance that courts have characterized as creating a strong inference of retaliation.”