A salacious lawsuit involving a hot tub company owner who allegedly demanded that an employee invite him to “swinging” sex parties is shaping up as a first-of-its-kind battle over the scope of sexual harassment law.
The U.S. Supreme Court established in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), that an employer can be sued for same-sex harassment when, under the same standard applied in opposite-sex cases, the harassment was “because of ... sex.”
In a complaint filed last month, Kevin Roessler alleges his workplace became sexually charged after his boss at Royal Spa Corp. of Indianapolis discovered that he and his wife “were involved in an open sexual relationship” and “frequently participated" in swinger parties.
Royal Spa owner Robert Dapper, the suit says, insisted that Roessler invite him to parties, made sexual advances toward Roessler's wife and eventually progressed to having Roessler arrange sexual encounters for him through swinger websites.
“Although these were consensual sexual encounters he felt that he was being used as [a] 'pimp' to acquire sex for Dapper,” Roessler complains.
Harassment is “because of ... sex” when the plaintiff would not have been an object of harassment but for their gender. In a motion to dismiss Roessler's suit, Royal Spa and Dapper argue he cannot show he was discriminated against because he was male.
“His stories of sexual activities involving non-employees, however salacious they may be, are neither sufficient nor relevant to the establishment of an employment discrimination claim recognizable under federal law,” the motion says.
The defendants cite cases in which courts ruled that employers cannot be sued over harassment of an employee's mother or wife.
Roessler began working for Royal Spa as director of business development in June 2008. He says he initially balked at Dapper's requests for invitations to sex parties but eventually relented out of fear for his continued employment at the company.
At the parties, the suit says, Dapper displayed “extremely aggressive behavior” toward Roessler's wife, persisting in his advances even though she rebuffed him. Roessler also alleges Dapper required him to “initiate sex in front of Dapper” at the sexual encounters he arranged and that on one occasion he showed up uninvited at the Roesslers' home.
“Fearing for her husband's job[,] Marcella relented and began to perform oral sex on Dapper,” the suit says.
Roessler claims he was fired in March 2011 in retaliation for “finally taking a stand against Dapper's harassing and unlawful behavior.”
The suit describes plenty of sexually explicit activity — which certainly could have caused Roessler embarrassment and humiliation. While he was initiating sex, he alleges, “Dapper would continually comment about the size of Kevin's penis.”
But the mere fact that harassment has sexual content is generally not sufficient to establish that the harassment amounted to discrimination because of sex. “Sexual activity, as distinguished from sexual identity, is not a discriminatory action covered by the provision of Title VII,” Royal Spa and Dapper say in their motion to dismiss.
The alleged harassment of Marcella Roessler was obviously because she is female. But as a Louisiana judge ruled,
There is no authority or legislative history to support extending the meaning of discrimination “because of sex” to include sexual liaisons with and sexual attractions to third parties not employed by the defendant employer. Cairo v. O.H. Materials Corp., 710 F.Supp. 1069 (1989).
Before Roessler filed his suit, Dapper sued him and his wife for attempted extortion, alleging they threatened to make false claims against Dapper. Marcella Roessler has countersued Dapper for intentional infliction of emotional distress.
By Matthew Heller