The Court of Appeals recently decided that a man could bring a hostile work environment claim based on the conduct of another male co-worker in Robinson v Ford Motor Co (published on 10/30/07). In Robinson, a co-worker/defendant at Ford Motor Company described his conduct as sexual horseplay by a heterosexual male. This “sexual horseplay” included slapping plaintiff on his buttocks, pinching his nipples, exposing his testicles to another co-worker while grasping plaintiff’s hand and attempting to make plaintiff touch them. You'll have to read the opinion for more of the salacious details.

First, the Court of Appeals held that plaintiff’s same-gender hostile work environment claim is cognizable under the Civil Rights Act. The Court relied on the United States Supreme Court's decision in Oncale v Sundowner Offshore Servs, 523 US 75, 80 (1998), that interpreted an identical phrase found in CRA. In reaching the decision in Robinson, the Court unequivocally held that the defendant's conduct was of a “sexual nature.” The term of “sexual nature” does not limit behavior pertaining to “sexual relations.” The Court held that when the perpetrator is heterosexual and member of the same sex, the conduct does not have to involve homosexual advances or sexual desires. The conduct in Robinson was of a sexual nature because it involved “direct contact with sexual organs or sexual parts of the body accompanied by either express or implied references to sexual activity.”

Second, the Court remanded to the trial court because the trial court had not examined whether the harassment was “because of sex” (which is an element of a sex discrimination claim, but not an element of the hostile work environment claim). Oncale provided sample avenues of showing discrimination was “because of sex”: (1) the harasser made sexual advances out of sexual desire, (2) the harasser is motivated by general hostility to the presence of men in the workplace, (3) the plaintiff offers ‘direct comparative evidence’ about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

If a plaintiff like the one in Robinson could show that the harasser treated men differently than woman (in order to establish “because of sex”) then what happens to the pervert who is an equal opportunity harasser against men and women? Is his employer immune from liability for its employee's lewd acts at the workplace unless the victims can show he is bi-sexual and had sexual desire for both men and women?