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A federal appeals court has reinstated same-sex harassment charges filed by a former employee against a diving company, but affirmed dismissal of his retaliation charge.
Chazz Roberts was hired as a “dive tender,” or diver’s assistant, by Charlotte, North Carolina-based Glenn Industrial Group Inc., which provides underwater inspection and repair services to utility companies in July 2015, according to Friday’s ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in Chazz J. Roberts v. Glenn Industrial Group Inc. et al.
Mr. Roberts said from the beginning of his employment at the company, all of whose non-office employees were male, his supervisor repeatedly called him gay and made sexually explicit and derogatory remarks to him. He also allegedly physically assaulted Mr. Roberts at least twice.
Mr. Roberts said he complained to the supervisor’s supervisor at least four times and to another supervisor who witnessed some of his conduct. He also expressed his concerns to the company’s human resources manager, who is the CEO’s wife, but never complained directly to the CEO himself.
Mr. Roberts was terminated allegedly because of two safety incidents. He filed suit in U.S. District Court in Charlotte, charging same-sex sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.
In reinstating Mr. Roberts’ same-sex sexual harassment charge, a unanimous three-judge appeals court decision said the lower court had misinterpreted the U.S. Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services Inc. et al., in which it held that sexual harassment discrimination charges can be made when the plaintiff and defendant are of the same sex.
In that ruling, the appeals court said, the high court identified three “evidentiary routes” by which a plaintiff could prove he was the victim of same-sex harassment based on his sex: when there is “creditable evidence” the harasser is homosexual; when the harassment’s derogatory terms indicate general hostility to the presence of the victim’s sex in the workplace; and when the comparative evidence shows the harasser treated members of one sex worse than members of the other sex in a “mixed-sex workplace.”
The district court concluded the second and third situations were not applicable to Glenn and dismissed the charge. However, the panel said, “Nothing in Oncale indicates the Supreme Court intended the three examples it cited to be the only ways to prove that same-sex sexual harassment is sex-based discrimination.”
Other circuits have stated conclusively that these “were not intended to be an exhaustive list of the ways to prove that same-sex harassment was based on sex,” it said, in concluding the lower court had erred in granting summary judgment to Glenn Industrial on Mr. Roberts’ same-sex sexual harassment claim.
It said the district court also erred in “disregarding entirely” the evidence of the supervisor’s physical assaults on Mr. Roberts because they were “not of a sexual nature,” the decision said.
While the supervisor’s actions “in choking and slapping Roberts were not overtly sexual, there is no requirement that they be so as to be considered as evidence in support of claim of a hostile environment based on sex,” the decision said.
The district court erred in failing to examine “more broadly whether (the supervisor’s) physical assaults on Roberts were part of a pattern of objectionable-based discriminatory behavior.”
The panel did affirm dismissal for Mr. Roberts’ retaliation claim. Mr. Roberts “has not presented sufficient evidence to demonstrate a causal relationship between his protected activity and his employer’s adverse action,” the decision said.
“Glenn did not have actual knowledge of Roberts’ complaints of sexual harassment when he terminated him, and there was a lack of temporal proximity between Roberts’ last complaint and his termination,” it said.
Attorneys in the case did not respond to requests for comment.
A Massachusetts medical device manufacturer has agreed to pay $240,000 to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission, which charged that a supervisor had engaged in sexual harassment of at least two female employees, one of whom was only 18 years old, the agency said Monday.