Heyl Royster


Heyl Royster


Seventh Circuit Clarifies: Title VII Prohibits Sex Discrimination, Not All Workplace Harassment


By: Jim Nowogrocki, jnowogrocki@heylroyster.com

A recent decision by the Seventh Circuit Court of Appeals confirms that under the Civil Rights Act of 1964, there is an important boundary line: Title VII is an anti-discrimination statute, not an anti-harassment statute. For today’s workplace, that means harassment which discriminates against an employee because of such individual's sex is unlawful. On the other hand, conduct between co-workers based on "personal animosity or juvenile behavior" does not constitute discrimination under federal law.

The facts set forth in Smith v. Rosebud Farm, Inc., No. 17-2626, 2018 U.S. App. LEXIS 21481 (7th Cir. Aug. 2, 2018), illustrate this important legal distinction.

The workplace atmosphere

The plaintiff in this case worked as a butcher in a small grocery store in Chicago. He had been on the job less than three weeks when his male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks. Over the next four years, that behavior was consistent, if not constant. At trial, the plaintiff recalled the many times his coworkers groped him, grabbed him, and even reached down his pants. They repeatedly mimed oral and anal sex.

At trial, the plaintiff offered evidence that only men, and not women, experienced the kind of treatment that he did at the grocery store. According to the Seventh Circuit, there was ample testimony - from both the plaintiff and other witnesses - which established that only men were groped, taunted, and otherwise tormented. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men.

While the employer argued that such evidence was insufficient because only male employees worked behind the meat counter, the court disagreed. It found that the plaintiff did not work in an all-male environment, but rather the grocery store was a mixed-sex workplace where men and women interacted daily.

Jury verdict and legal analysis

Ultimately, the Seventh Circuit ruled that the plaintiff introduced evidence that his coworkers only harassed male employees, and that the jury was free to conclude that these men discriminated against him on the basis of sex. A verdict was returned in favor of the plaintiff.

In reaching its decision, the court of appeals noted that workplace harassment, even harassment between men and women, is not automatically discrimination because of sex merely because the words used have sexual content or connotations. It reviewed a previous case in which an employee was subject to a male coworker’s sexual comments and unwanted touching. However, the important legal difference was that the plaintiff in that case did not prove that "that working conditions at his workplace were worse for men than for women." In fact, the evidence reflected that "the offending coworker picked on anyone of either sex he could get away with tormenting.”

In sum, Title VII requires that a female or male employee prove that co-workers created a hostile work environment by severely and pervasively harassing a plaintiff because of his or her sex.

Harassment policies and procedures still important

While not all workplace conduct may rise to the level of unlawful behavior under Title VII, it is still important for an employer to take steps - via training, anti-harassment policies and procedures - to prevent discriminatory harassment between employees.

For purposes of a sexual harassment claim under Title VII of the Civil Rights Act of 1964, an employer is entitled to an affirmative defense against liability if it can show: (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that an employee failed to take advantage of any preventive or corrective opportunities provided by the employer to otherwise avoid harm; prevention is the key.

Contact Heyl Royster

The attorneys in our Employment & Labor Practice are well-versed in the creation and implementation of anti-harassment policies and procedures, along with training for management and employees. If you would like to learn more about these services, please do not hesitate to contact us.