December 30, 2014

ANOTHER EXAMPLE OF THE “BECAUSE OF SEX” STANDARD

The case is Rickard v. Swedish Match N. America, in which the 8th Circuit affirmed summary judgment for Swedish Match on 12/2/14.  The case involved claims of both sexual and age harassment, but for present purposes, the focus is on the sex claim.  The district court summary judgment is available for further reading.

As of this writing, the 8th Circuit ruling has not yet been published in Lexis/Nexis.  However, subscribers to BNA can read the 8th Circuit ruling.

The facts of the case are that a male supervisor (Payne) squeezed the nipples of Rickard, a male sales employee, and committed other acts such as rubbing a towel in Rickard’s crotch.  The district court rules that the supervisor’s actions were not based on sex or sexual desire.  In its affirmation of summary judgment, the 8th Circuit ruled that although Payne’s actions were “manifestly inappropriate and obnoxious,” the evidence was insufficient to establish that Payne “harbored hostility against men in the workplace.”  Additionally, Rickard himself admitted that Payne never sought a sexual or romantic relationship.

To reiterate a point from previous Alerts, the “because of sex” standard was articulated by Justice Scalia in Oncale v. Sundowner (1998) [523 U.S. 75] and illustrates how difficult it is to establish the “because of sex” proof in same-sex harassment claims.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

 

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