Same-Sex Sexual Harassment Claim Dismissed

In Delagrange v. Weaver Popcorn Manufacturing, Inc., 1:20-CV-451-HAB, 2022 WL 3081978 (N.D.Ind. Aug. 3, 2022), the court, inter alia, dismissed plaintiff’s same-sex sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

The court summarized the black-letter law on this issue, arising from U.S. Supreme Court precedent, as follows:

Same-sex harassment claims are cognizable under Title VII provided that “the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Of course, that requirement applies to all claims of employment-based sexual harassment, whether same sex or opposite sex. … But in opposite-sex harassment cases involving “explicit or implicit proposals of sexual activity, the inference of discrimination is easier to draw because it is reasonable to assume those proposals would not have been made to someone of the same sex. The same does not hold true for same-sex harassment cases absent some evidence that the harasser was homosexual. [Cleaned up.]

Applying the law to the facts, the court noted that “[t]here is no evidence in the record that [the alleged harasser] was or is a homosexual, so something more is necessary for a finding that the harassment was because of Plaintiff’s sex.”

The court continued, explaining that “Plaintiff points to nothing in the record that would suggest that [the alleged harasser] directed the unwanted activities toward him because of his sex” and that “[t]he only argument he advances is that he believed that [the alleged harasser] was making a sexual advance,” and concluded that while that may be so, “nothing in the record is so explicit or patently indicative of sexual arousal that a trier of fact could reasonably draw that conclusion” and on that basis concluded that plaintiff’s sexual harassment claim must fail. [Cleaned up.]

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