Labor & Employment Law

Same-sex harassment: Absurd decision by the 5th Circuit

Connie Love claimed her employer violated Title VII because a female co-worker subjected her to sexual harassment through inappropriate comments, gestures, and physical contacts. The 5th Circuit, in a "non-precedential" 2-1 decision, upheld summary judgment for the employer, saying that

• Love failed to show that the alleged harasser made "explicit or implicit proposals of sexual activity."
• Love failed to provide "credible evidence that the harasser was homosexual."

Love v. Motiva Enterprises (5th Cir non-precedential 10/16/2009) (2-1).

The majority has totally gone off the deep end, and has engaged in simple judicial fabrication - grafting onto Title VII requirements that are not there.

Title VII prohibits "discrimination" "because of ... sex." Harassment is just one way that discrimination can occur - hiring, firing, promoting, harassing.

Nothing in the statute even suggests that a harasser has to be proposing sexual activity in order to violate Title VII. The statute is not about sexual activity or sexuality.

Nothing in the statute suggests that if one women is harassing another woman, the harasser has to be a homosexual in order to violate Title VII.

Let's see what the judges said.

• The majority said Love failed to prove that her co-worker made either explicit or implicit proposals for sexual activity. The court reasoned that the co-worker's "offensive and inappropriate" comments and physical touchings "do not support an inference of sexual attraction and implicit proposals for sex in light of [the co-worker's] consistent insults toward Love and demonstrated negative feelings about Love and her appearance."
• The dissent said, "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... made abundantly clear that, for a plaintiff to prove that she was sexually harassed, she need not show that the harasser was 'motivated by sexual desire.'"

• The majority said Love failed to prove that her co-worker was a homosexual. The court reasoned that Love failed to provide credible evidence that the co-worker was a homosexual, saying that her evidence was not "clear and credible proof that [the co-worker] is homosexual sufficient to defeat summary judgment."
• The dissent said "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... does not require that a plaintiff show that a same-sex harasser was either amorously motivated or homosexually oriented, as the majority opinion seems to suggest: rather, she need merely show that she was harassed 'because of sex.'"

Hats off to the dissent.

Full post as published by Ross' Employment Law Blog on October 22, 2009 (boomark / email).