Orientation Harassment Can Be Costly

GayLANCASTER, OHIO – In a decision last month, the 6th Circuit Court of Appeals drew a fine distinction between same-sex sexual harassment and harassment based on sexual orientation. While the decision was a victory for the employer, the conduct complained about should nevertheless be banned from the workplace.
Christopher Vickers worked as a private police officer at the Fairfield Medical Center in Lancaster, Ohio. His co-workers discovered he had befriended a male homosexual doctor at the center and began teasing him about his sexuality and questioning his masculinity.
Vickers claimed that his co-workers harassed him daily between May 2002 and March 2003. The litany of inappropriate conduct he cited was shocking. The behavior ranged from name calling to physical harassment and included one instance where a co-worker handcuffed Vickers and photographed another co-worker simulating sex with him. The photograph was then distributed at the facility.
When Vickers complained about the inappropriate behavior, the medical center took the position that Vickers did not have a “legally actionable claim” against it. The situation became so unbearable that Vickers resigned.
Vickers filed suit claiming he was being discriminated against under Title VII because he was being perceived as homosexual. The federal district court dismissed his lawsuit, holding that Title VII does not protect individuals from discrimination based on sexual orientation or because someone is perceived as being homosexual.
At the Court of Appeals, the plaintiff took a position that the harassers were discriminating against him because in their eyes his sexual practices, whether real or perceived, did not conform to traditionally masculine roles. He claimed this behavior actually was an example of protected sexual stereotyping.
The court acknowledged that under certain circumstances, sexual stereotyping can be a basis for a claim of discrimination or harassment. The court held that sexual stereotyping is limited to situations where an employee’s behavior or appearance in the workplace fails to conform to social expectations. However, the court found that the harassment this plaintiff was experiencing was based on his perceived homosexuality, rather than gender nonconformity.
The court acknowledged that same-sex sexual harassment can exist in three situations:
# Where a harasser is actually making sexual advances.
# Where a harasser is motivated by general hostility to the presence of men in the workplace.
# Where a plaintiff provides direct comparative evidence that the alleged harasser is treating members of both sexes differently in a mixed-sex workplace. The court did not find these facts in Vickers’ situation.
The time for filing an appeal in this case has not expired, so it may not be over. Regardless, employers should make every effort to prevent harassment based on sexual orientation from occurring. It is unprofessional, bad for morale, can result in claims from female employees who are offended and may cause a bad result for the employer. At a minimum, the cost of the defense and the time required to defend this type of claim will be huge.
from The Knoxville News Sentinel

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