The Fourth Circuit Court of Appeals last week joined several other federal appellate courts when it rejected a narrow reading of Supreme Court precedent regarding same-sex harassment claims under Title VII of the Civil Rights Act of 1964. Roberts v. Glenn Industrial Group, Inc., No. 19-1215 (4th Cir. May 21, 2021). The Fourth Circuit covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
The case involves Glenn Industrial Group, Inc. (“Glenn”), a business that provides underwater inspection and repair services to utility companies, and former employee Chazz Roberts.
According to the Court’s opinion, shortly after Roberts started working for Glenn in July 2015, his supervisor called him “‘gay’ and made sexually explicit and derogatory remarks towards him, including statements referring to him as a ‘fucking retard’ or having ‘retard strength,’ and asking him ‘how much dicks [he] would suck for money.’” Roberts was twice physically assaulted, including having his safety glasses slapped from his face, being pushed, and being put in a chokehold.
Roberts reported the behavior to his supervisor’s supervisor at least four times, however, the response he received was, “suck it up.” Roberts eventually reported the behavior to the company’s Vice President and Human Resources Manager, who was also the CEO’s spouse. The supervisor was never disciplined and the behavior continued.
After being terminated for safety-related issues in early 2016, Roberts filed a charge of discrimination with the EEOC and then filed suit in February 2018 alleging, among other things, that he was retaliated against for reporting the harassment and that he experienced same-sex sexual harassment by his supervisor. The trial court granted Glenn’s motion for summary judgment on both claims. On the harassment claim, the district court concluded that Roberts could not prove that the harassment was based on sex. Roberts appealed.
The Fourth Circuit affirmed the trial court’s decision regarding the retaliation claim, but vacated the same-sex harassment decision, reasoning that the lower court too narrowly applied the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).
In Oncale, the Supreme Court held that same sex harassment claims are viable under Title VII and provided three examples of situations that support a same-sex sexual harassment claim. As summarized by the Fourth Circuit:
In Oncale, the Supreme Court held that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” 523 U.S. at 79. The Court then identified three evidentiary routes by which a plaintiff could prove that he was the victim of same-sex harassment based on his sex: (1) when there is “credible evidence that the harasser [is] homosexual” and the harassing conduct involves “explicit or implicit proposals of sexual activity;” (2) when the “sex-specific and derogatory terms” of the harassment indicate “general hostility to the presence of [the victim’s sex] in the workplace”; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a “mixed-sex workplace.” Id. at 80-81.
Regardless of the “evidentiary route,” a plaintiff “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discriminat[ion] . . . because of . . . sex.’”
The federal district court granted Glenn’s motion for summary judgment because none of the three Oncale “routes” was present in Roberts’ case. Yet it was error for the trial court to consider the three examples from Oncale as the only way a plaintiff can prove same sex sexual harassment. Looking to Oncale and decisions from the Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits, the Fourth Circuit concluded that “Oncale’s three examples were not intended to serve as an exhaustive list of the ways to prove that same-sex harassment was based on sex.” What matters is that the plaintiff prove that the same-sex harassment was based on sex. Such proof can include evidence “of discrimination based on a plaintiff’s failure to conform to sex stereotypes,” as the Court explained in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The trial court should have considered the evidence beyond the confines of the three examples provided in Oncale and the physical abuse Roberts endured — even if not sexual in nature — because the physical assaults could be evidence of discrimination because of Roberts’ sex.
The Court vacated the decision as to the same-sex harassment claim and remanded the case to the United States District Court for the Western District of North Carolina.