Male Employee’s Sexual Comments to Male Coworker Sufficient to Send Harassment Claim to Jury

Sometimes I read cases that make me realize how boring and uneventful my worklife is compared to the workplaces we read about as employment lawyers and mediators (and that is a good thing).  A recent decision from the United States District Court for the Western District of Virginia  drove that point home yet again.

In Funk v. MWX Technologies, Inc., No. 6:16-cv-53 (W.D. Va. 8/22/18), Terry Trent and Perry Funk were male co-workers.  According to Funk’s lawsuit, Trent engaged in the following conduct in the workplace:

  • he opened his fly and thrust his crotch towards Funk’s face while Funk drank from the water fountain and said to Funk “taste this;”
  • he grabbed Funk’s underwear;
  • he falsely told colleagues he and Funk were having sex;
  • he told colleagues he wished he and Funk were in jail so that Funk could be his “bitch” and “make love” to him;
  • he referred to his penis as “Big Red” around Funk; and
  • he told colleagues he was “queer” because he allowed other men to “suck my d**k,”

Funk’s manager, Jerome Kessler, admitted to witnessing Trent’s conduct, but did not do anything to stop it, nor did he report it.  Both Trent and Kessler were fired by the employer.

Funk filed suit under Title VII, alleging that he had been subjected to same sex harassment. After discovery, the defendants moved for summary judgment. Defendants argued that there was no evidence from which a reasonable jury could infer that Trent’s harassment of Funk was “because of sex,” as required by the Supreme Court’s seminal decision in  Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.  75 (1998).   Judge Norman K. Moon  (who happens to have been my law school trial advocacy professor) rejected the defendants’ argument.  As stated by Judge Moon:

A juror might conclude that Trent simply hadn’t matured since high school. Maybe he was antagonizing Plaintiff out of a perverse sense of amusement, or trying to bully him.  Alternatively, the antics could have been a weird workplace bonding ritual, as the record contains evidence that Plaintiff himself used sexualized or crude language at times.  But no juror on this record would be required to reach those conclusions. And a reasonable juror would be justified to infer from it all that Trent harnessed some level of sexual desire for either men generally or Plaintiff in particular.

While Judge Moon ruled that it was ultimately for the jury to decide is Trent’s conduct created a hostile work environment in violation of Title VII, he did comment that “it is difficult to think of a more obvious and credible expression of sexual interest than Trent’s repeated ‘explicit and implicit proposals of sexual activity’ and sexualized touching of plaintiff.”

The Funk decision is a reminder that employers need to treat “horseplay” among coworkers seriously. Regardless of whether Trent’s conduct was motivated by sexual desire, it is clearly inappropriate in a twenty-first century workplace.

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