No Harassment Claim Based on Sexual Orientation

A male employee subjected to repeated harassment based on his sexual orientation was not entitled to bring a Title VII claim against his employer, according to the Sixth Circuit.

The male supervisor made derogatory comments about the employee such as: suggesting that he looked like a girl, that he should change his name to a girl’s name and said that the employee had sex with dead people.  The employee filed suit claiming that he had been sexually harassed.

The Court stated that the plaintiff had to show that, but for his gender, he would not have been the object of harassment.   To establish same sex harassment, the plaintiff had to show that the harasser made sexual advances or was motivated by a general hostility toward men in the workplace.  The Court found that the harasser’s conduct was horrible and bullying but there was no evidence that it was based on the plaintiff’s sex.  He treated all employees poorly.   On a final note, the Court held that sexual orientation harassment is not currently actionable under Title VII. 

The Eastern District of New York made a similar finding this week but did find some Title VII protection for these harassed employees.   Should these harassed employees complain, the complaints are protected activity and may form the basis of a retaliation claim under Title VII.