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Boss’s sexual banter ‘merely crude,’ not discrimination

A male worker who alleges that his former supervisor and a coworker subjected him to unwelcome sexual comments won’t be able to bring a federal suit alleging violations of the Civil Rights Act.

U.S. District Judge Louise Flanagan dismissed the claims under Title VII, which outlaws workplace discrimination on the basis of sex, saying that the plaintiff failed to claim the acts were motivated by his sex, or pervasive enough to constitute harassment. She remanded the case to the Wayne County Superior Court so that state claims could be heard.

“The ruling points out that Title VII doesn’t outlaw all forms of harassment, but only those based on sex or another prohibited factor,” said employment attorney Charles Johnson of Robinson Bradshaw in Charlotte, who was not involved in the case. “What the court found, in this case, was that the issue of whether the harassment was based on sex was insufficiently pleaded.”

The case dates back to a period from March to November 2016 when plaintiff Jeff Berry said his supervisor at Southern States Cooperative, Sammy Fields, and a co-worker, Hank Grady, subjected him to “unwelcome sexual comments on a frequent basis.”

Berry said that at one point Fields told him to get down on all fours so he could have intercourse with him, and that on another occasion, Grady told him to “take care of it” when he said he was sexually aroused.

Berry also claimed that Grady exposed himself “on a number of earlier occasions,” and that Fields knew about the allegations, but didn’t discipline Grady. Berry said that he also reported the incidents to Southern States, but no action was taken before he resigned in November 2016.

Flanagan said in her Sept. 13 order that Berry didn’t allege enough to show the acts wouldn’t have been made but for his being male, that his allegations were too broad, and that the acts were not pervasive enough to prove harassment.

“Plaintiff’s allegations are too general to support plaintiff’s claim of harassment,” Flanagan wrote. “Plaintiff also points to two specific statements made by defendants. These statements, while crude, are properly characterized as ‘simple teasing, offhand comments, and off-color jokes,’ rather than actionable conduct.”

Marc Gustafson of Bell Davis Pitt in Charlotte, another employment attorney who was not involved in the case, said that Flanagan relied on a subjective standard in trying to draw the line between boorish behavior and sexual harassment.

“The court decided these weren’t males making sexual advances toward another male,” Gustafson said. “The court said these males were making jokes toward another male. This could be viewed in a different light if you had males making similar statements against homosexual men, but I’m not sure the court has addressed this.”

Glenn Barfield of Haithcock, Barfield, Hulse & Kinsey in Goldsboro represents Berry. He said in an email that the courts are still trying to figure out what constitutes male-on-male sexual harassment.

“I think that the courts are struggling with the issue of whether male same-sex sexual ‘banter’ in the workplace should be treated the same as male-to-female sexual propositioning and commentary,” Barfield said. “Under existing U.S. Supreme Court precedent, such ‘banter’ seems to get a pass. We argued that later cases should require a re-examination of that approach.”

In his brief, Berry argued that while the existing precedent assumes that “homosexuality or bisexuality are so uncommon that same-sex solicitation of sexual activity is most likely mere ‘teasing’ or ‘joking,’” times have changed. Because more people are openly gay or bisexual than ever before, he argued such assumptions are no longer reasonable.

Flanagan, however, chose to not break with precedent.

“While no one condones boorishness, there is a line between what can justifiably be called harassment and what is merely crude behavior,” Flanagan wrote, citing the 4th U.S. Circuit Court of Appeals’ opinion in Ziske v. Mineta. “The acts alleged by plaintiff are not sufficiently severe or pervasive to constitute sexual harassment.”

Barfield said that he and his client are currently discussing appealing the case to the 4th Circuit, but they have not yet decided their next step. He said he expects to pursue claims of intentional infliction of emotional distress, negligent infliction of emotional distress and negligent hiring and supervision claims in state court.

Defense attorneys Molly Jagannathan and Sara Ash, both of Troutman Sanders in Charlotte, did not respond to requests for comment by press time.

The seven-page decision is Berry v. Southern States Cooperative, Inc. (Lawyers Weekly No. 002-010-18). The full text of the opinion is available online at nclawyersweekly.com.

Follow Matthew Chaney on Twitter @NCLWChaney

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