Court Allows Alleged Male Sexual Harasser to Sue His Employer Based on Sexual Stereotypes


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

Employment actions may be found to be unlawful if they are based on “sexual stereotyping.” The most common example of “sexual stereotyping” is when an employer takes inappropriate action against a female employee because she was not acting the way the employer thought women should act. For example, in the landmark Price Waterhouse v. Hopkins decision, the U.S. Supreme Court found that an employer had engaged in sex stereotyping by taking an action against a female the employer thought was too aggressive and not feminine enough. Other cases have held such comments as a woman’s inability to combine work and motherhood constitute sex stereotyping that provides evidence of discriminatory intent.

The Second Circuit Court of Appeals, in Sassaman v. Gamache, expanded that theory by allowing an alleged male sex harasser to utilize it to sue his employer for sex discrimination. In that case, it was alleged that Sassaman had engaged in harassing behavior against a female employee. The employer, which was a public entity, referred the complaint to the County Sheriff’s office for investigation, but did not refer it for internal investigation. Sassaman was then discharged. During the course of the discharge, Sassaman’s supervisor allegedly stated that he really did not have any choice, because the female knew a lot of attorneys and he was afraid she would sue him. The supervisor then allegedly added “and besides you probably did what she said you did because you’re male and nobody would believe you anyway.”

The trial court dismissed the case, finding that the comments attributed to the supervisor were stray and ambiguous. On appeal, the Circuit Court reversed and sent it back for trial. The court noted that the remark attributed to the supervisor could be construed as an unlawful comment about the propensity of a male to sexually harass his female colleagues. It further noted that the defendants failed to properly investigate the charges of sexual harassment.

The Court also stated that employers who fail to address claims of sexual harassment expose themselves to potential lawsuits. However, it held that fear, by itself, could not justify an employer’s reliance on sex stereotypes about males to resolve allegations of sexual harassment. In other words, the employer cannot presume male employees to be “guilty until proven innocent” based on sex stereotypes.

The import of this decision is clear:  sexual stereotypes cut both ways, and employers must be aware that an assumption that a male employee engaged in certain conduct because of his sex is just as dangerous as failing to take claims of sexual harassment seriously. The case further emphasizes the need for an immediate and effective investigation of complaints of harassment followed by conduct designed to insure that the harassment will not be repeated.

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