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Seventh Circuit Affirms Grocery Store Employee’s Same-Sex Harassment Title VII Victory

A male employee working in the meat department of his local grocery store prevailed in his Title VII sex discrimination claim alleging an unlawful hostile environment harassment created by his male coworkers and male supervisor. Following a verdict in plaintiff’s favor at the trial court level, the employer appealed to the U.S. Court of Appeals for the Seventh Circuit.  Smith v. Rosebud Farm, Inc. The appellate court upheld the lower court’s ruling.  According to the worker, and trial testimony, the employee’s male coworkers grabbed his genitals, groped him, mimed sexually explicit acts and even reached down his pants. Despite the employee’s complaints, nothing changed. Exacerbating the conduct, and making it apparent that the employer was deemed to be aware of the misconduct, the supervisor participated once or twice in the harassment. The employee’s coworkers also vandalized his car and menacingly banged their meat cleavers as he passed.

The employer argued plaintiff had to show more than just unwanted touching; the plaintiff had to prove the harassment he faced occurred “because of his sex.” The employer contended that the employee faced “sexual horseplay” and not “sex discrimination.” However, and as the Supreme Court directed in Oncale v. Sundowner Offshore Services, Inc., the employee introduced evidence that only men, not women, experienced the same treatment as him. With the increased attention on workplace harassment, including recent laws passed in, for example, requiring training and a detailed complaint presentation and remediation process, employers must investigate and timely address claims of sexual harassment. Unlawful sexual harassment has long included both opposite-sex and same-sex behavior. A reliable complaint and reporting procedure are vital to an effective anti-harassment policy.

Jackson Lewis P.C. © 2019

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About this Author

Associate

Henry S. Shapiro is an Associate in the Long Island, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Shapiro was the Senior Articles Editor for the Hofstra Law Review and he became a certified mediator in New York State. Mr. Shapiro completed a Concentration in Labor & Employment Law while in law school.

Prior to joining Jackson Lewis, Mr. Shapiro was an Associate at a Long Island...

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