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Same-Sex Sexual Harassment and Title VII Litigation in Tennessee

gavelWhile the most common version of workplace sexual harassment that most people visualize may be a male harassing a subordinate female, that is not the only form of sexual harassment that Title VII recognizes as actionable. Sexual harassment can be male-on-female, female-on-male, or same-sex. Additionally, the employees’ sexual orientation is not necessarily the key issue, either. In other words, a male can sexually harass another male worker, even if one or both men are heterosexual. All that the law requires in this regard is that the harassment is “based on sex.” An experienced Tennessee sexual harassment attorney can help you determine how to present your case.

One recent example of male-on-male harassment was the case of David, a shift manager at a steel plant. John was a process coordinator at the plant. John had trained David and assigned David’s duties, but both technically reported to Mark, the area manager. David started having problems shortly after he and John began working together. John allegedly asked about David’s sex life, grabbed David’s posterior and commented on its firmness, and also grabbed his genitals at least twice.

After the genital-grabbing incident, David complained to human resources. They offered him a transfer to a different area of the plant, which he accepted. They also demoted John and forced him to take a leadership class. The harassment stopped at that point. Nevertheless, a few months later, David resigned his position.

David later sued the employer for sexual harassment in violation of Title VII. The employer sought and obtained summary judgment in its favor in the trial court. If an employee seeks to hold his employer vicariously liable for the sexual harassment of a co-worker, there are certain specific things he must establish. One way to establish this vicarious liability is by proving that the harasser was the victim’s supervisor. That was a part of David’s case against the employer, and it was also where his case fell apart.

Just because John assigned David’s duties and was the person who had trained him, that didn’t automatically make him David’s supervisor. Title VII law requires, in order to qualify as a supervisor, that an employee be someone who holds the power to cause a substantial change in the victim’s employment status. John did not have the power to promote, demote, or fire David. John did have the power to recommend discipline against David, but he did not have the authority to mete out any discipline against David. Others made those decisions and were completely free to use or ignore John’s recommendations.

Another noteworthy element of this case was David’s argument that the employer was liable because it did not respond to his complaint reasonably. The response was unreasonable, David argued, since the employer had a history of treating male harassers of female victims more harshly than it treated John in this circumstance. The Sixth Circuit was not persuaded because Title VII does not have a requirement that employers respond to all harassment cases the same. The law only obliges the employer to act in a way reasonably designed to end the harassment. In David’s case, the actions the employer took did, in fact, end the harassment, so he lacked the proof of unreasonableness that he needed to succeed on this point.

A sexual harassment case involves several steps along the pathway to success. At the same time, a winning defense against a sexual harassment claim requires considerable knowledge and skill with regard to Title VII law. The experienced Tennessee sexual harassment attorneys at Mays & Kerr have spent many years working to advance the cases of our clients, both employees and employers. To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Tennessee Nurse Allowed to Pursue Title VII Case After Employer Allegedly Ignored or Minimized Multiple Instances of Sexual Harassment, Atlanta Employment Attorneys Blog, Aug. 22, 2017

When is a Worker a ‘Co-Worker’ and When is He a ‘Supervisor’ in Terms of a Sexual Harassment Case, Atlanta Employment Attorneys Blog, June 20, 2017

Photo Credit: Activedia, [CC0 License], via Pixabay