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4th Circuit: Many paths to same-sex Title VII claim

Correy E. Stephenson//June 21, 2021

4th Circuit: Many paths to same-sex Title VII claim

Correy E. Stephenson//June 21, 2021

The 4th U.S. Court of Appeals has revived a worker’s claim of same-sex sexual harassment, joining five sister circuits in holding that such plaintiffs aren’t limited to the three distinct evidentiary options outlined in a U.S. Supreme Court decision from 1998.

Chazz Roberts was hired as a “dive tender,” or diver’s assistant, by Glenn Industrial in July 2015. He 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, Richard Glenn.

Roberts alleges that from the beginning of his employment, his supervisor, Andrew Rhyner, repeatedly called him gay, made sexually explicit and highly derogatory remarks towards him, and physically assaulted him at least twice. Roberts complained to Rhyner’s supervisor (who told him to “suck it up”), another supervisor at the company, and the company’s human resources manager (who was also Glenn’s wife), but never complained directly to Glenn. Rhyner wasn’t disciplined or counseled, and his harassment of Roberts allegedly continued.

Roberts was involved in a work-related accident in March 2016 and removed from a site due to erratic behavior the following month. He was terminated shortly after. He filed suit in federal court in North Carolina alleging same-sex sexual harassment and retaliation in violation of Title VII.

Relying on the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), Senior U.S. District Judge Graham C. Mullen granted summary judgment to Glenn Industrial, saying said that Oncale identified three situations that support a claim of same-sex harassment based on gender but none of the “Oncale situations” applied in Roberts’ case. Roberts appealed, arguing that Mullen misconstrued and misapplied the Oncale decision.

Writing for a unanimous panel of the Fourth Circuit in a May 21 opinion, Chief Judge Roger L. Gregory agreed, reversing summary judgment in favor of the employer on the harassment claim.

“The district court erred in its interpretation of Oncale,” Gregory wrote. “Nothing in Oncale indicates the Supreme Court intended the three examples it cited to be the only ways to prove that same-sex sexual harassment is sex-based discrimination.”

Multiple evidentiary avenues

In Oncale, the Supreme Court recognized that same-sex harassment claims were valid under Title VII and identified three evidentiary routes by which a plaintiff could prove that he was the victim of same-sex harassment based on his sex: “(1) when there is ‘credible evidence that the harasser [is] homosexual’ and the harassing conduct involves ‘explicit or implicit proposals of sexual activity;’ (2) when the ‘sex-specific and derogatory terms’ of the harassment indicate ‘general hostility to the presence of [the victim’s sex] in the workplace’; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a ‘mixed-sex workplace.’”

But those three examples weren’t the exclusive means to allege a same-sex harassment claim, Gregory said.

“Notably, Oncale’s sexual harassment claim did not fall under any of the three examples the Supreme Court cited as ways a plaintiff could establish that same-sex harassment was ‘based on sex,’” Gregory wrote. “Yet the Supreme Court reversed the grant of summary judgment for the employer and remanded the case to permit Oncale to argue that the same-sex harassment he suffered constituted discrimination ‘because of … sex.’”

Other circuits—including the Third, Fifth, Seventh, Eighth and 10th Circuits—have considered the same question and stated conclusively that Oncale’s three examples weren’t intended to serve as an exhaustive list, Gregory said, and the Fourth Circuit followed in their footsteps.

Chief Judge Roger L. Gregory
Chief Judge Roger L. Gregory

“[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,” Gregory wrote. “In so doing, we reject Glenn Industrial’s arguments that Roberts’ claim is limited to the evidentiary routes described in Oncale, and that Roberts cannot show that the harassment was based on sex because Rhyner is not gay and did not make explicit or implicit proposals of sexual activity.”

Moreover, the Supreme Court’s holding in 2020’s Bostock v. Clayton County “makes clear that a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional male stereotypes,” Gregory wrote.

Retaliation claim fails

The Fourth Circuit did affirm summary judgment on Roberts’ retaliation claim, however. Although Roberts complained to multiple parties, Glenn didn’t have actual knowledge of Roberts’ complaints of sexual harassment when he terminated him, and constructive knowledge of protected activity based on complaints made to supervisory employees isn’t enough to support a causal link between that activity and a decisionmaker’s adverse employment action, Gregory explained.

“In this Circuit we have consistently required proof of a decisionmaker’s knowledge of protected activity to support a Title VII retaliation claim,” Gregory wrote. “To establish a causal relationship between the protected activity and the termination, a plaintiff must show that the decisionmaker was aware of the protected activity at the time the alleged retaliation occurred.”

Roberts failed to meet this burden, as he hadn’t presented evidence, either direct or circumstantial, sufficient to create a question of fact as to whether Glenn knew he’d been subjected to or had complained of harassment when Glenn terminated his employment, nor was there evidence that those who received the complaints reported them to Glenn or were later involved in the termination decision.

Further, there was a lack of temporal proximity between Roberts’ last complaint and his termination, Gregory said. Coming three months after his last report of harassment, Roberts’ 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.”

Geraldine Sumter, a lawyer in Charlotte, North Carolina, represented Roberts. Although she was disappointed in the court’s ruling on the retaliation claim, she was pleased with its reversal on the harassment claim.

“The story here is that the Fourth Circuit has joined the other circuits in recognizing that there can be a hostile work environment claim from a same-sex situation that does not necessarily involve a homosexual predator, so to speak,” Sumter said. “What is important is that you can state a claim based on an individual’s ridicule of a person who doesn’t conform to the gender stereotypes without that ridicule being of a sexual nature or being advanced for sexual gratification.”

Charlotte attorney Frederick Thurman Jr., counsel for the employer, did not respond to a request for comment.

The 28-page decision is Roberts v. Glenn Industrial Group Inc., VLW No. 021-2-178.

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