When workplace horseplay crosses line into same-sex sexual harassment

Same-sex sexual harassment at work can constitute an actionable (or legally pursuable) sex discrimination claim, the U.S. Supreme Court ruled in a 1998 case titled Oncale v. Sundowner Offshore Services, Inc. In a recent case, the U.S. 4th Circuit Court of Appeals (which covers West Virginia employers) chimed in with its first opinion on the matter since Oncale, finding a new way for employees to prove a same-sex harassment claim.

How we got here

Civil rights legislation prohibits discrimination “because of sex” (i.e., sexual harassment) but not harassment in general. Therefore, the Supreme Court gave three examples of how employees may be able to prove they were the victims of actionable same-sex sexual harassment as opposed to teasing, roughhousing, or horseplay:

• The conduct involves proposals of sexual activity, and there’s credible evidence the harasser was homosexual;
• The harassment involves sex-specific and derogatory terms, making it clear the harasser is motivated by general hostility toward members of the same sex in the workplace; or
• There’s direct comparative evidence in a mixed-sex workplace about how the harasser treated members of both sexes.

Some courts have indicated the above three ways of proving a claim aren’t the only options. Recently, the 4th Circuit agreed.

Facts