In Noviello v. City of Boston, No. 04-1719 (Feb. 16, 2005) a city employee complained about perceived incidents of sexual harassment. The employee alleged that after her complaints, she was not suspended, demoted or suffered some other form of adverse employment decision, rather that was subjected to repeated incidents of hostile behavior by her co-workers. The city employee sued for the retaliation under Title VII arguing that the hostile environment in her workplace created after the underlying complaints constituted retaliatory harassment. The First Circuit agreed outlining that “[e]ven when retaliation is derivative of a particular act of harassment, it normally does not stem from the same animus. Most often, retaliation is a distinct and independent act of discrimination, motivated by a discrete intention to punish a person who has rocked the boat by complaining about an unlawful employment practice. … That is a different animus than the sexual animus that drove the original harassment.” The court went on to explain that “[w]e .. hold explicitly that a hostile work environment, tolerated by the employer, is cognizable as retaliatory adverse employment action for purposes of [Title VII]. This means that workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases. … [T]he verb ‘discriminate,’ as used in [Title VII], logically includes subjecting a person to a hostile work environment.”

Following and even during any type of Title VII investigation, an employer should counsel its employees not to treat a complaining employee differently because of his/her complaints. The employees should be made to understand that complaints of discrimination or harassment are encouraged and make the work place better for all employees. The employers should be vigilant of any hostile environment that may have been created as a result of the Title VII investigation or may be growing following the Title VII investigation and move quickly to correct it.

While most commonly, the perpetrator and victim in a sexual harassment case are of different genders, that does not mean that the federal and state statutes will turn a blind eye to cases where victim and harasser are of the same gender. In Nevada, the state employment discrimination statute does include “sexual orientation” as a protected class. NRS 613.330(1). This dictates that same sex harassment would be a viable claim in state court cases even if the harasser and victim are of the same gender so long as the harassment is based on the victim’s “sexual orientation.” Thus a group of males harassing another male employee because of his sexual orientation, the victim/male employee could bring a claim under the Nevada state statutes.

But what about cases brought under the federal statute which does not include “sexual orientation” as a protected class? The federal statute does not similarly include “sexual orientation” as a protected class. Does this mean that same sex harassment is permissible under the federal legislation? In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 76, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the Supreme Court of United States considered “whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] ... because of ... sex," when the harasser and the harassed employee are of the same sex.” (Internal citations omitted).

In Oncale, plaintiff, a male employee, was employed on an oil platform in the Gulf of Mexico on an 8 man crew. During his employment, plaintiff was verbally abused, threatened with physical rape and had been physically assaulted. Id. at 77. The Louisiana federal court granted summary judgment against plaintiff holding that plaintiff had no cause of action under Title VII for harassment by male co-workers. That is, that male on male sexual harassment was not a viable claim under Title VII. The United States Supreme Court disagreed. Writing for the Supreme Court, Justice Anthony Scalia noted that,

“courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity. . . but harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion] ... because of ... sex." Id. at 80-81. (Internal quotations omitted).

Thus, the prohibition of harassment on the basis of sex does not mean that the conduct is not replete with sexual overtones. But rather is “because of . . . [the victim’s] sex.” The decision means that whether male on male or male on female, if the basis of the harassing conduct is the victim’s sex, the claim is viable under Title VII.

Although Oncale did make actionable same-sex hostile environment, it is important to note that it did not extend the protections of the federal statute on the basis of “sexual orientation.” This is till a significant difference between the state and federal statutes. If the harassment is based on an employee/victim’s sexual orientation, Title VII does not provide that employee with any cause of action.