In its Oncale decision, the U.S. Supreme Court agreed that same sex sexual harassment is actionable under Title VII. However, the Court qualified this decision by stating that the harassment must be motivated by sexual desire, or by hostility toward the presence of members of that gender in the workplace. Absent the presence of one of these factors, sexualized behavior in the workplace does not fall within the definition of sexual harassment under Title VII.

This principle was demonstrated last month in a decision from the Eighth Circuit Court of Appeals. Rickard v. Swedish Match N. Am. involved a male employee who alleged that his male supervisor squeezed his nipple, and rubbed a towel on his own crotch before handing it to the plaintiff. In his deposition, the supervisor admitted that this conduct was “sexual harassment.”

Despite this admission, the Eighth Circuit affirmed dismissal of the claim on summary judgment. The court noted the absence of any evidence offered by the plaintiff linking the supervisor’s behavior to his sexual desire for the plaintiff, or to any hostility toward the presence of other men in the workplace. While the Eighth Circuit characterized this behavior as contemptible, it was not sexual harassment under Title VII. The supervisor’s lay description of his behavior did not change this legal reality.

Of course, this decision does not mean that employers should tolerate this or other kinds of sexualized behavior in the workplace. Such conduct creates significant employee relations issues, as well as the possibility for other legal claims. However, when faced with claims of same sex sexual harassment, the employer’s review of the situation should include questions on whether the conduct falls within the Oncale standard.