Workplace Articles By BCC
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Discriminatory Standards
The tendency toward rulings of liability for quid pro quo often reflect a bias and, arguably, a different standard when the perpetrator is gay, a prejudice which is often present in hostile work environment claims as well. In Terry Yeary v. Goodwill Industries [6] , a case in which Yeary's gay supervisor made sexual advances toward him, the Sixth Circuit ruled that homosexual advances were definitely actionable, although heterosexual same-gender situations might violate Title VII (emphasis added).
The Fourth Circuit, which governs the central East Coast, reached contradictory rulings within a ten-month period in 1996. In each of these cases, the sexual orientation of the perpetrator was different. In one case, Mark McWilliams [7] , a mentally disabled mechanic, was subjected to ongoing harassment, including assaultive behavior, by fellow heterosexual coworkers. According to the court record, on one occasion, "...a coworker placed his finger in McWilliams' mouth to simulate an oral sexual act. During another of these incidents, a coworker and another placed a broomstick to McWilliams' anus while a third exposed his genitals." It was the court's opinion that while this behavior constituted "shameful heterosexual-male-on-heterosexual-male conduct," it was not actionable under Title VII.
Only months later in another case in which the conduct was initiated by gay men, the same court reached an opposite ruling. The plaintiff, Arthur Wrightson [8] , claimed that his five gay male supervisors at Pizza Hut repeatedly made sexual advances toward him. The court determined that this conduct was similar to the more traditional harassment of women by men and, as a consequence, was a form of gender discrimination, falling within the scope of Title VII.
While the above-referenced examples involve behavior that occurred between men, there are also cases involving offensive conduct between women. The same biases regarding the definition of sex discrimination and standards that are applied to perpetrators of different sexual orientations are often evident in these cases as well. A review of one such case decided in California District Court in 1995, Easton, et al., v. Crossland Mortgage Corporation [9] , reflects these prejudices.
In the Easton case, the female plaintiffs claimed that a sexually hostile work environment was created by their female supervisors. The court records detail a list of offensive behavior allegedly committed by the defendants including ongoing conversation at work about breast size, repeatedly lifting their shirts, and encouraging plaintiffs to do the same, to compare physical attributes, making specific comments about one of the plaintiff's breasts and buttocks, and pinching her "on the rear end." The court's summary of facts indicates that one of the defendants "explained it was a prerequisite of employment that all women show their breasts," a comment that, while at first produced a response of shock, was ultimately experienced as not being serious. The record further states that the defendants "flicked up Easton's dress so that the two women could, ostensibly, determine 'the color of her underwear.' Easton took to wearing pants on account of the defendant's conduct."
The court ruled that because the defendants were heterosexual, and that their behavior was not interpreted by the plaintiffs to be explicit requests to have sex, the underlying gender discrimination required for a cause of action was not met.