Not Just “Meat Counter Culture”: When Same-Sex Harassment Violates Title VII

Most of the time, the stories of workplace sexual harassment we hear about consist of conduct occurring between men and women.  Yet Title VII’s ban on discrimination because of sex encompasses same-sex harassment in the workplace as well.  Such was the lesson learned for a Chicago, Illinois grocery store that had justified the harassment of a male butcher as mere “meat counter culture” in Smith v. Rosebud Farm, Inc., Case No. 17-2626, 2018 U.S. App. LEXIS 21481 (7th Cir. Aug. 2, 2018).

Robert Smith was hired in 2003 as a butcher at the Rosebud Farm grocery store.   During his employment, Smith faced “several years of ongoing sexual and racial harassment from his male coworkers and supervisor.”  Specifically, and after only three weeks on the job, Smith’s coworkers harassed him by “grop[ing] him, grabb[ing] him, and even reach[ing] down his pants” among other egregious things.  They also harassed him on the basis of his race, used racial epithets, and told him to “go back to Africa.”  The supervisor not only knew of Smith’s coworkers’ harassment, but participated in it as well at times.

After Smith filed his charge of discrimination with the EEOC in 2008, his supervisor told the employees to stop the “goofing off” and “horseplay.”  The other meat counter employees, in response, continued to target Smith by “bang[ing] their cleavers menacingly at him and pass[ing] by him with large knives pointing out of the meat trays they carried.”  Smith’s car was vandalized in the employee-only parking lot, with its tires slashed and its windshield cracked.  He ultimately quit his job in 2008.

Smith sued Rosebud and its employees for sex and race discrimination, among other things.  A jury found for Smith on all counts and returned a verdict of $2,407,500.  (The court reduced the award to $470,000 pursuant to Title VII’s statutory damages cap.)  Rosebud appealed.

A Seventh Circuit Court of Appeals panel unanimously affirmed.  Rosebud did not contest that its employees and supervisor harassed Smith.  Rather, Rosebud argued that Smith failed to show that the harassment occurred because Smith was male.  Citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), which held that same-sex sexual harassment is actionable under Title VII, the Seventh Circuit agreed that Title VII’s ban on sexual harassment applies to harassment based on an individual’s sex, as opposed to all forms of harassment generally.  As a result, harassment of both men and women at a workplace may not necessarily qualify as harassment for Title VII purposes (though it may well violate other laws).

The Court then rejected Rosebud’s argument and found that Smith demonstrated that the harassment was discriminatory.  Specifically, Smith showed that the women who worked at the grocery store did not experience the harassment and that “only men were groped, taunted, and otherwise tormented.”  As a result, Smith’s verdict stands.

As this case demonstrates, harassment of employees in the workplace is inappropriate and can cause employers real headaches if left unaddressed.  Whether the conduct arises to a Title VII violation, however, is still its own, fact-specific issue.

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