In its 1998 Oncale decision, the U.S. Supreme Court recognized that same-sex sexual harassment can violate Title VII’s gender discrimination prohibitions. However, the court noted that in order to demonstrate violation of the law, the plaintiff needs to show that the harassment was prompted by either sexual desire or hostility to the presence of that person’s gender in the workplace. Oncale involved an all-male offshore drilling work site, and this legal standard raised questions over whether a plaintiff could reasonably meet this standard in the absence of a homosexual harasser. In the years since Oncale, lower federal courts have struggled with determining whether same-sex harassment occurs because of the victim’s sex.
 
Earlier this month, the Seventh Circuit Court of Appeals adopted a more liberal standard that should provide plaintiffs with a way to tie their treatment to sex discrimination. In Smith v. Rosebud Farms, Inc., the plaintiff was a male butcher who alleged that his male co-workers constantly harassed him, grabbing his rear end and genitals, and pantomiming sexual acts. After losing a jury trial, the employer appealed, claiming that the alleged conduct was sexual horseplay not tied to the plaintiff’s gender. The Seventh Circuit rejected this argument, affirming the jury’s verdict.
 
The court said that the conduct alleged by the plaintiff constituted sex discrimination under Title VII because female employees in the same workplace were not subjected to this kind of behavior. As a result, the jury could infer that the plaintiff’s treatment was based on his gender. The Seventh Circuit noted that its decision would have been different if the plaintiff had worked in a single-gender workplace.
 
This decision extends the Oncale requirement that a plaintiff show that the behavior was motivated by hostility to the presence of that gender in the workplace. The court inferred this hostility due to the absence of similar treatment directed at opposite sex employees. If followed by other federal appellate courts, this standard would allow more same-sex sexual harassment claims to avoid summary judgment and proceed to jury trial.

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