We've talked a fair amount about sexual stereotyping at the ole Handbook.
Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.
And of course, we have my "Ravishing Rick Rude" theory of same-sex harassment, which a federal appellate court crapped all over.
And on Monday, while some of you were out celebrating Cinco de Mayo -- I'm a Siete de Mayo guy myself, so hold my calls -- a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.
Put another way, the plaintiff claimed that his failure to laugh at his co-worker's infantile penis jokes and other oversexed comments, in conformity with how a "real man" should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.
Well, are you thinking what I'm thinking?
Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.
Why did the Defendants argue that, because the harasser allegedly told plaintiff "you gotta get it in," he was "attempting to encourage and support plaintiff, not demean or tease him?"
(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)
How is it that the plaintiff here is being sexually harassed "because of" his gender -- especially if the co-worker makes the similar sexual comments to other female co-workers?
Ah yes, the old equal-opportunity-pervert defense. Perfectly viable.
But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker's comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.
Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.
On a more complete record, the plaintiff's case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.
* * *
If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.