Employee teased with small penis jokes has a viable sexual harassment claim

Dodgeball on court

[Whichever one of you had the voodoo doll positioned in such a way that wouldn’t allow me to pun this lede, I’m gonna git you sucka!]

In Hayes v. Erickson Air-Crane, Co. (opinion here), a male plaintiff was constantly barraged with small penis nicknames from his male co-workers ranging from “little jimi” to “tiny tim” to “dodgeball” (based on Ben Stiller’s White Goodman character). He didn’t like it, and sued.

The Court found that, based on this behavior, a jury could find that the plaintiff could potentially prevail on his sexual harassment claims because a jury may find that he was subjected to unwelcome sexual comments that were pervasive enough to create a hostile work environment.

But, hold on here. Notwithstanding the appalling alleged treatment of the plaintiff, I can’t help but wonder if the employer could have escaped liability here.

A few times (here and here) we’ve talked about cases involving same-sex harassment. In each instance, the court was tasked with determining whether a same-sex harassment case had merit. And, each time, relying upon the U.S. Supreme Court’s three-part test in Oncale v. Sundowner Offshore Services, Inc., the court determined that it didn’t.

In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;
  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

Also, check out the dissent in Rene v. MGM Grand Hotel.

In Hayes, the employer argued that the small-penis nicknames were neither severe nor pervasive enough to constitute a hostile work environment. Instead, it strikes me that since all of Hayes’s harassers were male, the plaintiff may have lacked sufficient evidence to satisfy any one of the three Oncale criteria. Game. Set. Match.

Employment lawyers, what do you think? Too much sun for me on vacation? Or amirite?

(Got Sledgehammer in there; obscure enough to elude the power of the voodoo doll).

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