Tuesday, April 2, 2013

Male-on-male sexual harassment case goes to the jury

Here's a sexual harassment case that you don't see every day: a male worker claims a hostile work environment because a male supervisor sexually harassed him. The district court granted summary judgment, but the Court of Appeals rules in the plaintiff's favor and remands for trial.

The case is Barrows v. Seneca Foods Corp., a summary order issued in February 25. Barrow's supervisor, Sanabria, was the kind of guy you'd like to throw an electric toaster into his bathtub. Here is how the district court summarizes the evidence:

Sanabria constantly made vulgar comments, such as “suck my dick,” “come here and give me a blowjob,” and “[f]aggot, get the shovel [and] go out there and clean the drain out,” to [Barrows] and . . . to some, but not all, male employees. . . . The record further indicates that Sanabria grabbed [Barrows’s] testicles on one occasion, during a work-related argument, and that Sanabria hit [Barrows] and other male employees in the crotch on other occasions. There is no indication that Sanabria was homosexual or that he believed [Barrows] was a homosexual.
Men can harass other men in violation of Title VII. Sanabria treated the women better than the men, thereby exposing men to disadvantage terms and conditions of employment. While he directed vulgar comments and gestures toward men, he did not do this to women. This means that the harassment is gender-based.

Defendant argues that plaintiff has no case because he lacks corroborating evidence and "his story is not believable." This argument may work before a jury, but not in the Court of Appeals. The Court says it has doubts about plaintiff's account, and in fact there are some inconsistencies in plaintiff's story, but it's good enough to survive summary judgment. The Court says, "he recounted very specific derogatory and vulgar comments made by Sanabria and testified in detail concerning one incident in which Sanabria grabbed his testicles."

The jury can also find that the harassment was also severe or pervasive; touching an intimate body part can satisfy that test. I think the Court says for the first time in this case that grabbing someone's testicles may be sufficiently severe or pervasive to create a hostile work environment.

Finally, the jury can reject defendant's Faragher defense that plaintiff did not complain about the work environment, denying management an opportunity to deal with the problem. Here's how the Second Circuit wraps up that issue:

Barrows testified that, as required by the defendant’s anti-harassment policy, he complained to his supervisors about Sanabria’s conduct on multiple occasions. Although many of his supervisors deny ever receiving such complaints from Barrows, Bill Wallingford remembers having a conversation with Barrows about his allegations. Wallingford claims that Barrows asked him not to pursue the complaint, but Barrows remembers the conversation differently and testified that Wallingford told him nothing would be done. The actual content of this conversation and the veracity of Barrows’s contention that he had similar conversations with other supervisors are disputed issues of fact that we must leave for the jury.

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