Fourth Circuit Expands Scope of Potential “Same-Sex Harassment”

Labor & Employment

In a unanimous decision, the U.S. Court of Appeals for the Fourth Circuit has become the most recent federal appellate court to expand the scope of conduct that may constitute same-sex harassment.

Case Background

In 2018, Chazz Roberts sued his former, Glenn Industrial, for same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

Glenn Industrial is a Charlotte, North Carolina-based company that provides underwater inspection and repair services. In July 2015, Glenn Industrial hired Roberts as a diver’s assistant.

In his Complaint in the matter Roberts v. Glenn Industrial Group, Inc., No. 17-cv-745, Roberts alleged that his immediate supervisor engaged in a continuous practice of ridiculing and demeaning him by calling him “gay,” using sexually explicit and derogatory remarks toward him, and physically threatening him. Both Roberts and the supervisor at issue are men. Plaintiff also alleged that his supervisor assaulted him on at least two occasions, including pushing him, slapping him, and putting him in a headlock. During the relevant time period, all of Glenn Industrial’s field employees (including Roberts and the supervisor at issue) were males.

Roberts alleged that he complained to Glenn Industrial management on several occasions but was told to “suck it up.” According to Court records, Glenn Industrial never disciplined or counseled Roberts’ supervisor.

Glenn Industrial terminated Roberts’ employment in 2016, based on the company’s contention that Roberts engaged in disruptive and erratic behavior at a jobsite. After filing a charge of discrimination with the EEOC, Roberts sued his employer alleging violations of Title VII.

The District Court Dismisses Roberts’ Claims

The United States District Court for the Western District of North Carolina dismissed Roberts’ sexual harassment claim on summary judgment, on the ground that Roberts failed to forecast sufficient evidence showing that his supervisor harassed him “on the basis of his sex.”

Specifically, the Court noted that in Oncale v. Sundowner Offshore Services, the Supreme Court identified three situations that could support a claim for same-sex sexual harassment:

  1. the plaintiff presents credible evidence that “the alleged harasser is homosexual” and made “explicit or implicit proposals of sexual activity”;
  2. the plaintiff shows that the harasser was motivated by general hostility to the presence of members of the same sex in the workplace; or
  3. the plaintiff offers “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” 

The lower court noted that there was no evidence to support any of these three criteria, because: (1) the alleged harasser was heterosexual and did not proposition the plaintiff; (2) there was no evidence that the alleged harasser was generally hostile toward men in the workplace; and (3) the plaintiff’s workplace was exclusively male, and there was therefore no “comparator” evidence related to similarly-situated female employees.   

The court further noted that while the supervisor’s conduct was “certainly vulgar and inappropriate,” the plaintiff had failed to demonstrate that the conduct at issue was discriminatory or “based on his sex.”

The Fourth Circuit Reverses 

On May 21, 2021, the Fourth Circuit reversed the district court’s decision dismissing Roberts’ sexual harassment claim and remanded the case for further proceedings.  (Roberts v. Glenn Industrial Group, No. 19-1215 (4th Cir. May 21, 2021)).

In its decision, the Fourth Circuit held that the three categories identified by the Supreme Court in the Oncale decision were not intended to serve as an exclusive list of the ways to prove a claim of same-sex sexual harassment.  The Court further held that additional forms of proof beyond those identified in Oncale are available to plaintiffs to demonstrate that same-sex harassment was “based on sex,” including proof of discrimination based on a plaintiff’s “failure to conform to sex-based stereotypes.”

Notably, the Fourth Circuit also stated that the lower court erred by disregarding the evidence related to the supervisor’s alleged physical assaults on the ground that they were “not of a sexual nature.”  The Court stated that while the supervisor’s actions “in choking and slapping Roberts were not overtly sexual, there is no requirement that they be so to be considered as evidence in support of a claim of a hostile environment based on sex.”

Based on the lower court’s errors, the Fourth Circuit vacated summary judgment and remanded the case.  The Fourth Circuit further instructed the lower court that on remand, “the district court must reexamine, based on a proper application of Oncale…whether Roberts established that the harassment he suffered was based on his sex.”

Impact on Employers

The Fourth Circuit’s decision in Roberts v. Glenn Industrial Group, Inc., should stand as a reminder to employers that over the last several years, federal courts have broadened their interpretations of Title VII to prohibit conduct that was not previously considered harassment “on the basis of sex.”  

Pursuant to Title VII, employers have an affirmative obligation to investigate and take appropriate remedial action to prevent harassment in the workplace.  While the alleged conduct in Roberts was clearly “vulgar and inappropriate” (as noted by the district court), the employer in Roberts may not have discerned that the conduct at issue was also potentially actionable under Title VII.  To ensure compliance with state and federal anti-discrimination laws, employers are well-advised to promptly investigate and take appropriate remedial action in response to any personnel complaint alleging inappropriate conduct in the workplace.