In Lanier v. Wise County et al, Civil Action No. 4:23-cv-01241-O, 2024 WL 4536468 (N.D.Tex. Oct. 21, 2024), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s claim of same-sex sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
The Fifth Circuit has established a two-step process for evaluating same-sex harassment claims under Title VII. Russell v. Univ. of Tex. of Permian Basin, 234 F. App’x 195, 201 (5th Cir. 2007). First, the employee must establish that the sexual harassment was “discrimination because of sex.” Id. (citing La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002)). Second, if the employee establishes this link, then the court must decide whether the alleged conduct meets the applicable standards for either a quid pro quo or hostile work environment claim. Id. In this case, Plaintiff brings his sexual harassment claim as a hostile work environment claim,6 but the Court does not reach the second step because Plaintiff fails to establish “discrimination because of sex.”
At the first step, a plaintiff can establish “discrimination because of sex” if, for example, there is “credible evidence that the harasser was homosexual” (and presumably was motivated by sexual desire); the conduct made it “clear that the harasser [was] motivated by general hostility to the presence of [the same sex] in the workplace;” or there is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81 (1998). “Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex.’ ” Id. at 81 (emphasis and alteration in original). Importantly, Title VII is not “a general civility code” that protects against “all verbal or physical harassment in the workplace,” even when “the words used have sexual content or connotations.” Id. at 80.
To start, Plaintiff does not offer “credible” evidence that Defendant Wallace is homosexual. Plaintiff argues that “Defendant Wallace repeatedly telling Plaintiff Lanier to perform oral sex on [another sheriff] to get him in a better mood,” “calling Plaintiff Lanier a ‘cum guzzler,’ ” and referring to Plaintiff as his “lover” “may fairly be inferred to express homosexual desires.”7 Plaintiff likens these facts to those in La Day, where the Fifth Circuit found evidence of homosexual interest. 302 F.3d at 479–80. But La Day involved “evidence of sexual advances both to the victim and to other employees.” Id. at 480. Here, Plaintiff offers no such evidence that Defendant Wallace made sexual advances to Plaintiff or anyone else.
Thus, absent evidence that Defendant Wallace committed sexual acts or physically made advances, the Court cannot reasonably infer that Defendant Wallace’s harassment was motivated by same-sex attraction, as opposed to an impulse to engage in ordinary, albeit vulgar and offensive, locker-room talk. Even taking as true the fact that Defendant Wallace referred to Plaintiff as his lover, there is no evidence of any sexual conduct, only vulgar language. Without this evidence, the most reasonable inference given the social context (a presumably male-dominated sheriff’s office) is that Defendant “was simply trying to humiliate [Plaintiff] for reasons unrelated to any sexual interest.” See id.
Nor does Plaintiff attempt to show that Defendant Wallace’s conduct was motivated by a general hostility to the presence of men in the workplace, or that he treated members of both sexes in a mixed-sex workplace differently. Plaintiff does not discuss how Defendant Wallace treated other employees, whether male or female.
In sum, Plaintiff fails to allege that he was the subject of harassment as a result of his sex. Therefore, the Court does not reach whether he meets the requirements to show a hostile work environment. But even if it did, while the “comments allegedly directed at [Plaintiff] were unquestionably offensive, boorish, and unwelcome,” “[t]hat does not […] mean that the so-called ‘locker room’ talk at issue passes the high bar required to establish an actionable hostile-work-environment claim.” Bowen v. Univ. of Tex. Med. Branch, No. 3:19-CV-00382, 2022 WL 868707, at *12 (S.D. Tex. Feb. 14, 2022), report and recommendation adopted, No. 3:19-CV-00382, 2022 WL 861506 (S.D. Tex. Mar. 23, 2022).
Based on this, the court held that plaintiff’s Title VII sexual harassment claim was subject to dismissal.