The case of a former Kansas firefighter whose supervisor repeatedly subjected him to sexual comments shows that federal law continues to offer little protection to victims of same-sex harassment.

Since a 1998 U.S. Supreme Court ruling, same-sex harassment has been actionable under Title VII of the Civil Rights Act. But Richard Beseau, who claimed the supervisor's abuse forced him to quit the Johnson County, Kan., fire department, could not overcome the evidentiary hurdle that has evolved from Oncale v. Sundowner Offshore Services, 523 U.S. 75.

Title VII requires a sexual harassment plaintiff to show discrimination “because ... of sex,” and, in Oncale, the Supreme Court said a jury can infer discrimination as a threshold matter from “credible evidence that the [same-sex] harasser was homosexual” and “motivated by sexual desire.”

Beseau presented evidence that Captain Kevin Ritter made frequent comments to him about masturbation, touched his shoulder in a “seductive” manner, asked if he was homophobic, and said to him, “If you ever get scared at night, you can come and cuddle with me in bed.”

But U.S. District Judge Richard D. Rogers of Topeka found “no evidence in the record that Ritter or plaintiff is homosexual. Both men are married to women. Ritter has two children.”

Ritter's “crude efforts at jocularity or domination do not appear appropriate even in an all-male work environment,” Rogers said in an order summarily dismissing the case. “The record is barren of proof, however, that Ritter’s conduct, albeit improper, was motivated by sexual desire or sexual prejudice.”

Other courts have applied Oncale in the same narrow way. In 2004, for example, the Montana Supreme Court said a plumbing company employee who was repeatedly threatened with anal intercourse by a co-worker failed to show that “the conduct rose to the level of discrimination based on sex." Campbell v. Garden Plumbing and Heating, 97 P.3d 546.

The problem here is that same-sex harassment –- like other forms of harassment –- is likely to be more about power than sex. Judge Rogers, indeed, noted that Ritter is “much smaller” than Beseau, who is 6 feet 2 inches tall and weighs about 315 pounds, and that his behavior might be a “crude effort” at domination.

If Oncale is to have any value as a precedent, plaintiffs should be allowed to show that the alleged same-sex harasser behaved as if he or she was motivated by sexual desire. To be actionable, the harassment would still have to be severe or pervasive enough to constitute a hostile work environment.

By Matthew Heller
10/19/06