7th Circuit Upholds Jury Verdict for Plaintiff-Employee in Same-Sex Sexual Harassment Lawsuit

On August 2, 2018, the 7th Circuit affirmed a jury verdict in favor of an employee and against an employer in a same-sex sexual harassment and employment discrimination lawsuit.  Smith v. Rosebud Farm, Inc., No. 17-2626 (7th Cir. 8/2/2018).  The plaintiff worked as a butcher in a local grocery store on the south side of Chicago.  After enduring several years of ongoing sexual and racial harassment from his male coworkers and supervisor, he filed a lawsuit against his employer for violations of Title VII of the Civil Rights of 1964, as amended ("Title VII"), Section 1981, and the Illinois Gender Violence Act.  The jury returned a verdict in favor of the employee.  On appeal, the 7th Circuit held that the evidence supported the inference that the plaintiff's coworkers harassed him because he was male (only male and not female employees were harassed at the grocery store) and, therefore, because male employees were treated differently from female employees, a reasonable jury could conclude that the plaintiff was harassed because of his sex (which is an essential element of a Title VII sexual harassment claim).

The same-sex sexual harassment included male coworkers grabbing his genitals and buttocks, groping him, reaching down his pants, and miming oral and anal sex on him and each other, over a period of four years.  Additionally, the plaintiff's supervisor not only knew about the harassment, but also participated in it once or twice.  The plaintiff was also targeted because of his race and subjected to racial epithets, such as "go back to Africa."  After he complained about the sexual harassment repeatedly, but to no avail, he filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights, alleging that his coworkers had sexually harassed him.  Once his supervisor received notice of the discrimination charges, the plaintiff was subjected to retaliatory workplace harassment.  Behind the meat counter, his coworkers banged their meat cleavers menacingly at him and passed by him with large knives pointing out of the meat trays they carried.  He found his car, which he had parked in the gated, employee-only lot, with slashed tires and a cracked windshield.  He became increasingly frightened at work, and quit his job due to intolerable working conditions. 

After the EEOC issued a Notice of Right to Sue to him, he filed a lawsuit for a host of claims against his former employer and some of its employees, including sex and race discrimination as well as retaliation, seeking compensatory and punitive damages, as well as attorneys' fees and costs.  The jury returned a verdict for the plaintiff on all of his claims that went to trial.  The defendant raised various issues on appeal, including its main contention that the harassment was just "horseplay" and was not because of the plaintiff's sex.  The 7th Circuit rejected this argument.  The plaintiff's Title VII claim charged his male coworkers and male supervisor with creating a hostile work environment by severely and pervasively harassing him because of his sex.  A hostile work environment under Title VII is one that is so pervaded by discrimination that the terms and conditions of employment are altered.  However, Title VII only prohibits workplace harassment if the harassment is based on an employee's protected classification, such as, in cases of sexual harassment, the employee's sex.  Otherwise, the harassment is not actionable.  The plaintiff offered evidence that only men, and not women, experienced the harassment that he did at the defendant's workplace.  There was ample testimony from witnesses that established that only male employees were groped, taunted, and tormented.  Because the plaintiff established that his coworkers only harassed male employees, and did not harass female employees, the jury was free to conclude that that these men discriminated against him on the basis of his sex.  

This decision leaves an interesting issue in its wake: what if the male coworkers had equally groped and grabbed the genitals and buttocks of both male and female employees, such that there was no discriminatory treatment based on sex?