On Feb. 25, the 2nd U.S. Circuit Court of Appeals reversed a summary judgment for the employer in Barrow v. Seneca Foods Corp. The court sketched out the vulgar details: Among other things, a coworker allegedly improperly touched the plaintiff and called him the ‘F’ word. The district court found that there was no indication that the tormentor was a homosexual or that the tormentor believed that the plaintiff was a homosexual. And, because of this, the district court granted summary judgment to the employer.
The 2nd Circuit reversed, holding that the sexual orientations of the alleged tormentor and plaintiff were irrelevant to determining whether a plaintiff states a same-sex harassment claim.
Here’s where the circuit split arises. Back in 2009, the 5th U.S. Circuit Court of Appeals upheld summary judgment for the employer by a 2-1 vote in Love v. Motiva Enterprises LLC, holding that a plaintiff only can make a claim of same-sex harassment if the tormentor is homosexual.
But the dissent neatly wrapped up the competing view: The issue is not the tormenter’s sexuality but whether he or she directed the alleged actions to the plaintiff because of his or her sex. Thus, in Love, the dissent reasoned that comments and conduct directed toward the plaintiff, such as “sorry excuse for a woman” and improper touching, occurred because of Love’s sex. For the dissent, that was sufficient for the plaintiff to state a claim.
Arguments before the U.S. Supreme Court on gay rights and the 5th Circuit’s grant of en banc review on sexual stereotyping will only highlight these issues.