Posted by: Jennifer Milligan
March 06, 2006

Is there such a thing as a valid claim under Title VII for same sex harassment?  The Seventh Circuit Court of Appeals concluded that a male coworker has alleged sexual assaults and harassment of a male employee did not implicate Title VII or impute liability on an employer.  Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7^th Cir. 2005).  Concluding that coworkers’ actions (1) forcing the employee’s face into his crotch; (2) grabbing the employee’s hand and moving it to his crotch; (3) pulling hair on the employee’s chest; and (4) biting the employee in the neck amounted to sexual assault, battery and sexually humiliated the employee, the Court concluded that Title VII does not cover coworkers’ torts.  The employee failed to demonstrate how the coworker’s conduct could be imputed to the employer using standard agency principles since the coworker was not the employee’s supervisor.  Additionally, the employee failed to show the employer knew about the misconduct, yet failed to intervene.  When the employee finally told a supervisor about the misconduct (which he did not do until after the 4^th attack), the co-worker’s misconduct ended.  The Court concluded that the coworker’s harassment, though sexually explicit, did not implicate Title VII because what happened to the employee was not severe or pervasive conduct affecting the conditions of his employment because of his sex.  The employee failed to show the misconduct “reflected more than personal animosity or juvenile behavior” considering that most of his time working for the employer was untroubled. 

Although, I agree with the court’s reasoning in this decision, you have to wonder whether the result of this case would have been the same if it was a male employee accused of harassing a female employee, instead of male on male harassment.   

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