The Fifth Circuit Court of Appeals recently upheld summary judgment for an employer in a same-sex sexual harassment and retaliation matter. Love v. Motiva Enters. LLC, No. 08-30996 (5th Cir. Oct. 16, 2009), available at http://www.ca5.uscourts.gov/opinions/unpub/08/08-30996.0.wpd.pdf.
To prove same-sex sexual harassment, a plaintiff must: (1) show the harasser made explicit or implicit proposals of sexual activity and provide credible evidence that the harasser is homosexual; (2) show the harasser was motivated by general hostility to the presence of members of the same sex in the workplace; or (3) present direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Here, the plaintiff alleged that a female co-worker made derogatory comments about the plaintiff’s appearance and character and also touched her inappropriately. The Court found that the comments and behavior, while inappropriate, could not be considered sexually suggestive because the co-worker’s attitude was one of intimidation and humiliation. Further, the plaintiff presented no credible evidence that the co-worker was homosexual.
The Court also found that the employer did not retaliate against the plaintiff by unfairly disciplining her or by removing her from her position because the plaintiff failed to show that the employer’s stated nondiscriminatory reason for its adverse actions was pretext.
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