Pessin Katz Law, P.A.

[co-author: Dan Grossman, Summer Associate]

A recent federal appellate decision clarified the contours of same-sex sexual harassment claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the landmark law that prohibits discrimination “on the basis of sex” in employment. In Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111 (4th Cir. 2021), Chazz Roberts was repeatedly subjected to sexually derogatory remarks by his male supervisor and was also physically assaulted on several occasions. Roberts sued his employer for sexual harassment, but the trial court ruled in favor of the employer because Roberts could not prove that the harassment fell within any of the three evidentiary routes the Supreme Court set forth in its 1998 decision in Oncale v. Sundowner Offshore Services, Inc.—that is: (1) when there is credible evidence that the harasser is homosexual and the conduct involves explicit or implicit proposals of sexual activity; (2) when the conduct indicates general hostility to the presence of the victim’s sex in the workplace; and (3) when evidence shows that the harasser treated members of one sex worse than members of the other sex in a “mixed-sex workplace.”

On appeal, the United States Court of Appeals for the Fourth Circuit concluded for the first time that the Onacle “routes” were not exhaustive, and it therefore reversed the trial court’s ruling. In so holding, the Fourth Circuit also affirmed that employees can substantiate their sexual harassment claims with evidence of sex-stereotyping. Lastly, the Fourth Circuit clarified that its earlier precedent that sexual harassment claims could not be based upon the sexual orientation of the alleged victim is no longer good law in light of the Supreme Court’s recent decision in Bostock v. Clayton County.

In short, the Fourth Circuit in Roberts not only broadly interpreted the meaning of the term “sex” as used in Title VII, it also opened the door for employees to prove their claims in a wide variety of ways. Employers should respond accordingly by ensuring that their policies are current and their employees are trained in full compliance with the law.