In Oncale v. Sundowner Offshore Services, the Supreme Court recognized the viability of same-sex harassment cases under Title VII of the Civil Rights Act of 1964, and outlined three different forms of same-sex harassment:

In Roberts v. Glenn Industrial Group, Inc., the Fourth Circuit addressed a situation that did not neatly fall into any of these categories.  In Roberts, the plaintiff was routinely insulted and called “gay” by his supervisor.   The plaintiff sued, claiming same sex–harassment, but the case was dismissed because his circumstances did not conform to any of the three categories outlined by the Supreme Court in Oncale.  

On appeal, the Fourth Circuit reversed the lower court’s decision, and held that the three categories enumerated in Oncale are not an exhaustive list of the viable same-sex harassment claims under Title VII.  The Court rejected the employer’s argument that the plaintiff could not establish that the harassment was based on sex because the harasserwas not gay and did propose sexual activity.  Instead, the Court held 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.”  

In doing so, the Fourth Circuit joined several other circuits in holding that Oncale’s three categories are meant to be illustrative, rather than exhaustive.  If you have any questions about same-sex harassment, or any area of employment law, contact Thatcher Zavaro & Mani at 301-850-1246. www.ThatcherLaw.com.  Follow us on: