I’m usually delighted to read court decisions that refuse to find actionable sexual harassment based on ordinary vulgarities, locker room talk, adult jokes, or the like.
But I do wonder about a recent male-on-male harassment decision by the Supreme Court of Montana, which favored the employer.
I think there is a double standard; I doubt the court would have tolerated the conduct and the supervisor’s response if the plaintiff had been a woman.
The case, summarized here in the Billings Gazette (AP), is Campbell v. Garden City Plumbing , 2004 MT 231 (8/24/04) [link to pdf of full text]
The AP story says:
A divided Montana Supreme Court has thrown out a sexual discrimination claim filed by a man who claimed he was subjected to a barrage of sexual comments from male co-workers in a Missoula plumbing business.
While the four-member majority concluded Travis Campbell failed to prove the vulgar and crude treatment was based on his sex, the three dissenting justices said they saw evidence the “base and degrading” conduct was heaped on Campbell because he was a male.
The decision released Tuesday upholds rulings by the Montana Human Rights Commission and a lower court that the sexual remarks made to Campbell didn’t cross the line from “male-on-male horseplay” at work to discriminatory conditions.
Campbell said he was subjected to an onslaught of graphic and crude comments that almost always referred to ways the other employees intended to use him for their sexual gratification.
The employees suggested they would perform various sexual acts on Campbell against his will, according to the court’s summary.
Campbell tried to deal with the “uncomfortable treatment” by bantering with co-workers, but said nothing changed. When he asked a supervisor about reporting someone for sexual harassment, he was told he probably would not live to testify, the opinion stated.
This case is a good example of the point that sexual harassment is not about the sexual nature of the conduct, but whether it is imposed on someone because of their sex, i.e. gender.
Here there was some evidence that this was a guy picked on because he was perceived as not masculine enough — the plaintiff believed he was picked on because of his small stature, his habit of wearing an earring, and his habit of extending his pinkie finger when drinking from a coffee cup. Apparently the majority concluded, probably correctly, that these guys would have acted similarly — or worse — around female employees.
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