All-Male Workforce Does Not Preclude Sex Discrimination Claims

Alyssa Levy

A recent 4th Circuit ruling reminds us that sex discrimination claims are not precluded by a single-sex workforce.   

The 4th Circuit vacated summary judgment for the employer on an employee’s same-sex sexual harassment claim in Roberts v. Glenn Industrial Group, Inc. (4th Cir. 2021).  An employee working as a diver’s assistant alleged that his supervisor repeatedly called him “gay,” made “numerous sexually explicit negative comments” toward him, and physically assaulted him at least twice.

The District Court analyzed these facts under the standard articulated in the Supreme Court case Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) before granting summary judgment for the employer. Oncale identified three situations to support a same-sex sexual harassment case: 1) sexual proposals by a homosexual harasser, 2) sex-specific derogatory terms creating hostility, and 3) treating members of one sex worse than others.  However, according to the District Court, none of these scenarios applied to Roberts’ allegations, thus requiring summary judgment for the employer.  In reversing summary judgment, the 4th Circuit reminded employers and the District Court that an employee can prove discrimination based on same-sex harassment circumstances other than the three scenarios outlined in the Oncale case. The District Court’s focus on the fact that the employee’s alleged harasser did not identify as homosexual was not dispositive of the question of whether a viable sex discrimination claim existed.

Indeed, decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and the more recent Bostock v. Clayton County, 140 S. Ct. 1731 (2020) make clear that a plaintiff may prove same-sex harassment when a harasser takes actions against an employee who does not conform to traditional gender stereotypes. Employers should address inappropriate conduct reported to them irrespective of the genders of the employees involved.