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4th Circ. adopts broad view of same-sex harassment under Title VII

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Dutch couple Gert Kasteel and Dolf Pasker pose for Reuters, in Weesp, Netherlands March 31, 2021. Picture taken March 31, 2021. REUTERS/Piroschka van de Wouw

A U.S. appeals court on Friday became the latest to endorse a broad view of what constitutes unlawful same-sex harassment in the workplace, reviving a utility worker's lawsuit over his supervisor's sexually explicit and derogatory comments.

A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals said three routes for proving same-sex harassment outlined by the U.S. Supreme Court in the 1998 case Oncale v. Sundowner Offshore Services were not an exhaustive list of viable claims under Title VII of the Civil Rights Act of 1964.

The 4th Circuit joined six other appeals courts in rejecting a narrow reading of Oncale. The court said a North Carolina federal judge should not have thrown out Chazz Roberts' sex bias claim against Glenn Industrial Group Inc merely because his legal theory did not fit into the Supreme Court's trio of examples.

Roberts was backed by the Equal Employment Opportunity Commission, which urged the 4th Circuit to adopt a broad view of what constitutes unlawful same-sex harassment.

Roberts' lawyer, Geraldine Sumter of Ferguson Chamber & Sumter, did not immediately respond to a request for comment. Nor did Glenn Industrial's lawyers at Shumaker Loop & Kendrick.

Charlotte-based Glenn Industrial provides underwater inspection and repair services to utility companies. Roberts was hired in 2015 as a diver's assistant.

He claims that from the beginning of his employment, his direct supervisor repeatedly called him gay and made sexually charged comments, and physically assaulted him on two occasions.

Roberts complained to Glenn Industrial's human resources manager, who was the wife of the company's chief executive, but the supervisor was never disciplined and his harassment of Roberts continued, according to court filings. Roberts was fired a few months later after what Glenn Industrial said were multiple safety violations.

In a 2017 lawsuit in Charlotte federal court, Roberts accused Glenn Industrial of sex discrimination and retaliation in violation of Title VII. He claimed the harassment by his supervisor was based on his sex because he had called him gay and made other sexual remarks.

U.S. District Judge Graham Mullen in Charlotte granted summary judgment to Glenn Industries in 2019, saying Roberts' claims did not mirror any of the Supreme Court's examples of same-sex harassment in Oncale.

The court in Oncale said a plaintiff could prove that same-sex harassment was based on sex when there is evidence that the harasser is gay, when the harassment indicated a general hostility toward a specific sex, or when the harasser treated men and women differently.

On Friday, the 4th Circuit agreed with Roberts that Oncale did not set out an exclusive list of circumstances in which same-sex harassment is actionable under Title VII.

The Oncale case, in fact, involved claims similar to those by Roberts that a male employee was humiliated and assaulted in a sexually-charged manner, Circuit Judge Roger Gregory wrote. He said Mullen had erred in failing to examine whether the supervisor's physical assaults of Roberts showed a pattern of sex-based behavior.

The panel included Circuit Judges Steven Agee and Barbara Keenan.

The case is Roberts v. Glenn Industrial Group Inc, 4th U.S. Circuit Court of Appeals, No. 19-1215.

For Roberts: Geraldine Sumter of Ferguson Chamber & Sumter

For Glenn Industrial: Frederick Thurman of Shumaker Loop & Kendrick

For the EEOC: Jeremy Horowitz

Our Standards: The Thomson Reuters Trust Principles.

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