Texting, Touching Credible Evidence in Same-Sex Harassment Lawsuit - U.S. Fifth Circuit
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Texting, Touching Credible Evidence in Same-Sex Harassment Lawsuit

When a supervisor sends a subordinate texts like “ur 2 sexy,” a company should either reprimand the supervisor, or prepare to pay in a sexual harassment lawsuit. The defendant in today’s Fifth Circuit appeal chose the latter.

The Fifth Circuit Court of Appeals recently ruled in favor of an employee who brought a same-sex sexual harassment lawsuit against his employer, finding that the evidence supported the employee’s claim that he was sexually harassed and that his employer failed to promptly respond to the situation.

Plaintiff John Cherry worked on a survey crew for Shaw Coastal, an engineering firm. Cherry's supervisor on the survey crew was Scott Thornton, and Thornton's supervisor was Michael Reasoner. Shortly after Cherry began working on the survey crew, Reasoner began brushing against him in a way that made Cherry feel uncomfortable.

While the "brushing" could have been the unintended consequence of working in close quarters, there was little doubt that Reasoner's intentions were inappropriate; he also asked Cherry to take his shirt off, wear cut-off jean shorts, and take his pants off to try to get a tan.

Cherry asked Reasoner to keep his comments to himself. Reasoner didn't.

A month later, Reasoner began sending explicit texts to Cherry, and began touching Cherry despite Cherry's protests.

Both Cherry and Thornton complained to Shaw Coastal managers that supervised their crew. The managers initially did nothing, but later arranged for Cherry and Reasoner to work on different crews. When human resources finally looked into the matter, the company concluded that there was not enough evidence to determine whether the conduct occurred.

Cherry continued to complain that Reasoner was harassing him. After five months at Shaw Coastal, Cherry resigned -- citing the company's failure to address Reasoner's behavior as the reason for his departure -- and filed a sexual harassment lawsuit.

The Supreme Court ruled in Oncale v. Sundowner Offshore Services that a plaintiff may support a same-sex sexual harassment lawsuit with credible evidence that the harasser is homosexual. The Fifth Circuit recognizes two types of credible evidence in such cases: evidence that the harasser intended to have sexual contact with the plaintiff rather than to merely humiliate him, or evidence that the harasser made same-sex sexual advances to others, especially other employees.

The jury found for Cherry. The court then entered judgment as a matter of law for Shaw Coastal, asserting that "Reasoner's conduct ... does not amount to credible evidence establishing that Reasoner has a sexual interest in men" or that Reasoner was homosexual. The Fifth Circuit Court of Appeals reversed, and reinstated the jury verdict.

Here, the court found that Cherry presented more than sufficient evidence that Reasoner's harassment was sexual in nature, and that Shaw Coastal did not prompt remedial action to prevent the behavior.

Same-sex sexual harassment lawsuits may be a relatively new development in employment law, but the Fifth Circuit is sensitive to behavior that can be considered credible evidence to support a harassment claim; employers would be wise to follow suit.

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