Not all harassment illegal

If you have a weak stomach for gruesome cases, skip this one. In this case, a man with learning disabilities was brutally harassed by his male co-workers. The court held that because the harassment was among men, all of whom were heterosexual, he could not sue for sexual harassment.

Could he file suit for something else? If it could be shown that the harassment was because of his disabilities, perhaps he could sue under the Ameicans with Disabilities Act. In many states, including California, he would not be able to sue for intentional infliction of emotional distress. His exclusive remedy would be to make a claim for workers compensation. In other states, such as Oregon and South Carolina, he would be able to sue for intentional infliction of emotional distress against his co-workers as individuals, and against his employer if the employer knew the actions were occurring.

Case Excerpts

(Please be aware that what follows may be offensive):

Mark McWilliams, an employee of Fairfax County, Virginia, appeals the dismissal by summary judgment of his claims under Title VII and 42 U.S.C. s 1983 against the Fairfax County Board of Supervisors (the County) and two of its supervisor-employees growing out of alleged acts of sexual harassment and physical abuse of McWilliams by fellow-employees. Reviewing the grant of summary judgment de novo, we affirm.

I. The facts as construed most favorably to McWilliams from the summary judgment record are as follows. Sometime in mid-1987, the Newington Facility of the Fairfax County Equipment Management Transportation Agency (EMTA) hired McWilliams as an automotive mechanic. At that time, McWilliams informed the facility of a learning disability that had arrested his cognitive and emotional development. Miguel Boschulte acted as McWilliams' supervisor from approximately September 1987 until November 1991. From November 1991 until September 1992, Ward Lee Cash replaced Boschulte as McWilliams' supervisor.

Beginning sometime in 1989, McWilliams' coworkers, collectively known as the "lube boys," beset McWilliams with a variety of offensive conduct. They teased him, asked him about his sexual activities, and exposed themselves to him. They taunted him with remarks such as, "The only woman you could get is one who is deaf, dumb, and blind." On one occasion, a coworker who sometimes took on supervisory responsibilities placed a condom in McWilliams' food. The conduct involved physical assaults. On at least three occasions, coworkers tied McWilliams' hands together, blindfolded him, and forced him to his knees. On one of these occasions, a coworker placed his finger in McWilliams' mouth to simulate an oral sexual act. During another of these incidents, a coworker, Doug Witsman, and another placed a broomstick to McWilliams' anus while a third exposed his genitals to McWilliams. On yet another occasion, Witsman entered the bus on which McWilliams was working and fondled him.

The atmosphere of the all-male workplace at EMTA was heavily focused on sex. Copies of Playboy magazine and a variety of pornographic material were display ed in the bathrooms. Centerfold pictures as well as Snap-On-Tool calendars of scantily clad women were placed in and around mechanics' tool boxes. Off-color cartoons were circulated around the workplace. The radio was often tuned to talk shows that featured explicit sexual references.

On three occasions, McWilliams complained about certain of these matters to his supervisors. None involved incidents of physical abuse. In the spring or summer of 1991, he complained to Boschulte about the incident in which his coworker had placed a condom in his food. In response, Boschulte held a meeting with McWilliams' coworkers to discuss the incident. On July 22, 1992, McWilliams complained to Cash that Doug Witsman had offered him money for sex. Later in July, McWilliams told Cash that Witsman was "flicking his tongue at [him] and saying 'I love you, I love you.' " When questioned by Cash, Witsman admitted that he may have said something that McWilliams had taken the wrong way. Witsman then promised Cash that he would not "tease or harass Mr. McWilliams any more, any time."

McWilliams proffered evidence that others than he had informed EMTA supervisors about the lube boys' conduct and the general workplace environment. McWilliams deposed that Mike Stutzman, an assistant supervisor, had informed Cash that the lube boys were taunting McWilliams and exposing themselves to him. Hannon Wallace Davis, a coworker, deposed that Stutzman, had told him of a conversation between Stutzman and Cash in which Stutzman had warned Cash that, although he did not know what was going on, the lube boys were engaging in horseplay and Cash ought to investigate the situation. McWilliams' name was not mentioned during the conversation. Davis further deposed that he thought McWilliams had complained to Billy Davis, a night foreman, about the lube boys and that Billy Davis had then informed Buck George, the day-shift superintendent.

In August 1992, Cash noticed that McWilliams appeared distraught. When he questioned McWilliams about his emotional state, McWilliams replied that he was upset about his parents' divorce, a failed relationship with a woman, and a potential reduction in force at EMTA. Cash then referred McWilliams to the County's Employee Assistance Program. Once there, McWilliams was diagnosed with severe emotional problems, which caused him to leave his employment in September 1992 on medical leave.

On October 12, 1992, McWilliams informed EMTA management that he had been sexually abused by Witsman. The following day, the County initiated an investigation of McWilliams' allegations and the County Police Department began a criminal investigation of Witsman. In January 1993, McWilliams filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging discrimination on the basis of sex and disability. The EEOC issued a right-to- sue letter on July 14, 1993, and on October 13, 1993, McWilliams commenced this action in federal district court. He alleged claims of workplace sex discrimination under Title VII against the County, related claims under 42 U.S.C. s 1983 against the County and his supervisors Cash and Boschulte for alleged constitutional violations, and other related claims under state tort law against his supervisors and several of his coworkers. Following discovery, the defendants moved for summary judgment on each of McWilliams' claims. Concluding that neither the County nor Cash or Boschulte had either actual or constructive knowledge of the coworkers' conduct on which the various claims were based, the district court granted those defendants' motion for summary judgment on the Title VII and s 1983 claims. The court then dismissed without prejudice the state claims against McWilliams' supervisors and coworkers.

II. McWilliams first contends that the district court erred in dismissing his Title VII claim of sexual harassment against the County. Under Title VII of the Civil Rights Act of 1994, it is "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

McWilliams' claim is solely one of hostile- environment harassment. An employee claiming hostile-environment sexual harassment by his employer must prove: (1) that the conduct in question was unwelcome, (2) that the harassment was based on his sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer.

The County raises serious questions as to whether McWilliams has proffered sufficient admissible evidence to support the necessary finding that any of his supervisors, hence the County, were on actual or constructive notice of coworker conduct sufficient to have created a hostile workplace environment. We need not address those problems, however, for we hold that McWilliams' hostile-environment claim fails for the more fundamental reason that such a claim does not lie where both the alleged harassers and the victim are heterosexuals of the same sex. Here, both McWilliams and all his alleged harassers were indisputably males, and no claim is made that any was homosexual.

We believe this result compelled by a commonsense reading of the critical causation language of the statute: "because of the [claimant's] sex". As a purely semantic matter, we do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be "because of the [target's] 'sex.' " Perhaps "because of" the victim's known or believed prudery, or shyness, or other form of vulnerability to sexually-focused speech or conduct. Perhaps "because of" the perpetrators' own sexual perversion, or obsession, or insecurity. Certainly, "because of" their vulgarity and insensitivity and meanness of spirit. But not specifically "because of" the victim's sex.

The difficulty of construing this causation language to reach such same-sex claims and the commonsense of not doing so are emphasized when the practical implications are considered. That this sort of conduct is utterly despicable by whomever experienced; that it may well rise to levels that adversely affect the victim's work performance; and that no employer knowingly should tolerate it are all undeniable propositions. But to interpret Title VII to reach that conduct when only heterosexual males are involved as harasser and victim would be to extend this vital statute's protections beyond intentional discrimination "because of" the offended worker's "sex" to unmanageably broad protection of the sensibilities of workers simply "in matters of sex." We cannot believe that Congress in adopting this critical causation language and the Supreme Court in interpreting it to reach discrimination by the creation of hostile workplace environments could have intended it to reach such situations. There perhaps "ought to be a law against" such puerile and repulsive workplace behavior even when it involves only heterosexual workers of the same sex, in order to protect the victims against its indignities and debilitations, but we conclude that Title VII is not that law.

McWilliams v. Fairfax County Bd. of Sup'rs --- F.3d ----,
1996 WL 10280 (4th Cir.(Va.), Jan. 9, 1996)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.