Sexual orientation irrelevant in man-to-man harassment.

Heterosexual males harassed by other heterosexual males in the workplace can sue an employer for sexual harassment under Title VII of the Civil Rights Act, according to a recent federal appeals court decision. (Doe V. City of Belleuille, 119 F.3d 563 (7th Cir. 1997).)

The decision could expand the universe of actionable sexual harassment claims in recognizing same-sex harassment outside the context of sexual orientation and by condemning male horseplay against male victims. (Darryl Van Duch, Sex Stereotyping Ruled Job Bias, Nat'l L. J., Aug. 4, 1997, at A6.)

Judge Ilana Diamond Rovner, writing for the majority of the Seventh Circuit panel, said, "A concern that seems to have motivated a number of courts in refusing to recognize cases of same-sex sexual harassment is that courts will be deluged with complaints stemming from horseplay and rough language among men.... Mery similar concerns were expressed when courts rejected the first claims of sexual harassment brought by women in the 1970s."

Rovner continued, "[A] man who is harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in away that does not meet his coworkers' idea of how men are to appear and behave, is harassed "because of' his sex."

The Doe case involved twin brothers who, while minors, were hired by the city of Belleville, Illinois, to cut grass in the municipal cemetery. Because H. Doe wore an earring, he was constantly referred to as a "fag" or "queer" by coworkers, and both brothers were ridiculed during their two months on the job. They both quit--and their parents filed suit against the city --after one coworker grabbed H. Doe's crotch, saying he was going to "find out if you're a girl or a guy." (Brian Cummings, Harassment Knows No Gender: Court, Chi. Daily L. Bull., July 18,1997, at 1.)

A district court judge dismissed the suit, reasoning that since the brothers and their harassers were heterosexual males, the plaintiffs could not show they were harassed "because of" their sex. The Seventh Circuit reversed and remanded the case for trial.

Attorney Ferne Wolf of East St. Louis, Illinois, who represented the brothers, pointed out that limiting a cause of action on the basis of sexual orientation can raise painful discovery issues. "I think the Seventh Circuit recognized what a discovery nightmare it would be to everyone to have me have to prove the sexual preference of the harasser," she said.

Fundamentally, Wolf said, the Seventh Circuit decision cuts through arguments about sexual orientation and refocuses on hostility in the workplace.

"You have to show that the harassment is based on a characteristic that is protected, such as race or sex," Wolf said, "but I think the court realized you could infer by the conduct alone in this case that it was based on sex because of the sexual nature of the conduct."

Federal appellate courts have been deeply divided over how to apply standards of liability for sexual harassment. For example, in direct contrast to the Seventh Circuited opinion, the Fourth Circuit last year in McWilliams v. Fairfax County Board of Supervisors declared that male workers sexually harassed by men and female workers sexually harassed by women have no recourse under Title VII. (72 F.3d 1191 (4th Cir.), cert. denied, 117 S. Ct. 72 (1996).

The U.S. Supreme Court has agreed to rule on a Louisiana same-sex harassment case (Oncale v. Sundowner Offshore Services, Inc., 95 F.3d 56 (5th Cir. 1996)) during the coming term. Both attorneys and judges are looking to the High Court for guidance in this area. "As I understand it," said Wolf, "this case is a pure legal issue. There's not much else for the Supreme Court to deal with except whether there can be a cause of action for same-sex sexual harassment."