Judge Dismisses Homosexual Harassment Claim

May 28, 2003 (PLANSPONSOR.com) - Despite providing sufficient evidence to back a Title VII claim that being homosexual led to workplace harassment, a judge ruled that the alleged harassment was not "pervasive" or "severe."

>U.S. District Judge Berle Schiller issued a summary judgment in Kay v. IBC for Independence Blue Cross (IBC) , finding that the harassment in question was “sporadic” and did not interfere with the plaintiff’s work performance.   Further, Schiller could not find evidence that the employer was in any way negligent, according to a Legal Intelligencer report.

>Schiller also found it “significant that [the] plaintiff [Harry Kay] was never physically threatened or humiliated. Viewed as a whole, the mistreatment directed at plaintiff — while not trivial — involved conduct more accurately described as offensive utterances than something more egregious.”

Rejected Flawed Argument

However, Schiller rejected the employer’s argument that the case was fatally flawed because the plaintiff was stereotyped as acting like a homosexual male, not because he was seen as acting like a woman.   IBC’s argument was based on the U.S. Supreme Court’s ruling in Hopkins v. Price Waterhouse that found harassment could only occur if the plaintiff can show that he or she was mistreated for acting like the other gender.

>Therefore, for the plaintiff’s argument to succeed, the defense said, he would have to show that his co-workers believed he acted too much like a woman.

“This argument frames the issue in a misleading fashion,” Schiller offered as his reason for the disagreement.  Schiller instead referred to the 3rd U.S. Circuit Court of Appeals decision in Bibby v. Phila. Coca Cola Bottling Co. , that found that gender stereotyping claims might be brought by men when they have been harassed for not meeting “societal stereotypes of how men ought to appear or behave.”

As a result, Schiller said, Kay’s burden was to show that he was discriminated against “for not conforming with norms for the male gender.” Kay did just that, Schiller found, by showing various incidents of disparaging remarks made by co-workers.   That argument, Schiller said, “amounts to an attempt to rely on the evidence that harassment may have also been motivated by an anti-gay animus as a defense to the Title VII claim.”

Not Pervasive

Regardless, Schiller concluded IBC was entitled to summary judgment because Kay was unable to show that his employer was in any way negligent. In fact, IBC had a grievance procedure in place and responded to Kay’s complaints with investigations and, in some instances, reprimands. The reprimands apparently worked, Schiller concluded, since Kay never had reason to complain again about the two workers who were warned for their harassment.

“In light of the steps taken by IBC in response to Mr. Kay’s grievances, I conclude that no reasonable jury could find that Mr. Kay has established the existence of respondent superior liability,” Schiller wrote.