In a recent summary order, the Second Circuit in Barrows v. Seneca Foods Corp. vacated a summary judgment for defendant on plaintiff’s same-sex sexual harassment claim.
Plaintiff alleged that
Sanabria [one of plaintiff’s male supervisors] constantly made vulgar comments, such as “suck my dick,” “come here and give me a blowjob,” and “[f]aggot, get the shovel [and] go out there and clean the drain out,” to [Barrows] and . . . to some, but not all, male employees. . . . The record further indicates that Sanabria grabbed [Barrows’s] testicles on one occasion, during a work-related argument, and that Sanabria hit [Barrows] and other male employees in the crotch on other occasions. There is no indication that Sanabria was homosexual or that he believed [Barrows] was a homosexual.
The court discussed the legal standard for evaluating same-sex harassment claims, by reference to the Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998):
In Oncale, the Supreme Court held that there was no categorical rule excluding same-sex harassment claims from the coverage of Title VII, but that a plaintiff still needed to show that he or she suffered discrimination because of sex. … In other words, [t]he critical issue for same-sex harassment claims is whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g., a hostile work environment] to which members of the other sex are not. … The Court outlined three examples of evidence that could satisfy this test: (1) the harasser is homosexual (and, therefore, presumably motivated by sexual desire); (2) a victim is harassed in such sex-specific and derogatory terms by [someone of the same gender] as to make it clear that the harasser is motivated by general hostility to the presence of [someone of the same gender] in the workplace; or (3) there is direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Initially, the court found:
[D]irect comparative evidence shows that Sanabria treated women better than men and that, therefore, men were exposed to [a] disadvantageous term or condition of employment to which [women] were not. … Barrows testified in his deposition that Sanabria directed vulgar comments toward many of his male coworkers and struck the genitals of numerous male employees, but female employees at Seneca Foods were apparently not subjected to the same treatment. … The evidence … similarly demonstrates that men were the primary targets of Sanabria’s conduct, and, therefore, a jury could reasonably find that the conduct was gender-based. A reasonable jury could also consider the fact that some of Sanabria’s vulgar comments were sex-specific and that he frequently touched male-specific (and sex-related) body parts. Although these additional considerations might not create a material question of fact on their own, they could contribute to a reasonable jury’s ultimate conclusion that the alleged harassment was motivated by the victim’s sex. Therefore, the district court erred in concluding that Sanabria’s alleged actions could never amount to discrimination because of sex.
The court rejected defendant’s invitation to affirm summary judgment because plaintiff’s testimony was not credible. While there were “gaps and inconsistencies” in plaintiff’s testimony it was not “wholly conclusory, contadictory, or incomplete.” Rather, “[h]e recounted very specific derogatory and vulgar comments made by Sanabria and testified in detail concerning one incident in which Sanabria grabbed his testicles.”
As to whether the alleged conduct was “severe or pervasive”, the court held that assuming that “Sanabria touched Barrows’s intimate body parts many times and, in one instance, grabbed his testicles … [t]here is no doubt that, under [Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012)], a reasonable jury could find that this conduct is sufficiently severe or pervasive to constitute a hostile work environment.
Finally, on the issue of whether plaintiff’s supervisor’s conduct can be attributed to defendant, genuine issues of fact existed as to whether plaintiff failed to take advantage of defendant’s complaint procedure. Defendant was therefore not entitled to the so-called Faragher/Ellerth defense as a matter of law.