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Although the U.S. Supreme Court held in Oncale v. Sundowner that same-sex sexual harassment is actionable, a federal appeals court Wednesday made clear that the decision did not extend Title VII to cover claims of anti-gay harassment. “Harassment on the basis of sexual orientation has no place in our society. Congress has not yet seen fit, however, to provide protection against such harassment,” 3rd Circuit Judge Maryanne Trump Barry wrote in Bibby v. Philadelphia Coca-Cola Bottling Co.Barry found that John Bibby’s claim was properly rejected by federal Judge Jan E. DuBois of the U.S. District Court for the Eastern District of Pennsylvania because his claim alleged only anti-gay harassment and therefore didn’t meet the requirement that a same-sex harassment case must be premised on discrimination “because of” the plaintiff’s sex.The unanimous opinion, which was joined by 3rd Circuit Judges Jane R. Roth and Ruggero J. Aldisert, outlines three valid theories for pursuing a same-sex harassment case, but holds that Bibby’s case didn’t fall into any one of them. Bibby’s lawyers — Arthur B. Jarrett and Jonathan J. James of James & Jarrett — argued that if DuBois’ ruling were upheld, the appellate court would be placing an extra burden on gay and lesbian plaintiffs bringing an action for same-sex sexual harassment by requiring that they prove that their harassers were not motivated by anti-gay animus. Barry disagreed, saying, “Whatever the sexual orientation of a plaintiff bringing a same-sex sexual harassment claim, that plaintiff is required to demonstrate that the harassment was directed at him or her because of his or her sex. Once such a showing has been made, the sexual orientation of the plaintiff is irrelevant.” And if the plaintiff can show that the harassment was motivated by his or her sex, she said, “it is no defense that the harassment may have also been partially motivated by anti-gay or anti-lesbian animus.” Bibby, who is gay, started working at Coca-Cola Bottling in June 1978. In 1993, he had medical problems that included weight loss, breathing difficulties and vomiting blood. On the job one day, Bibby claims he was having pains in his stomach and chest when he was found by his supervisor with his eyes closed and with a machine for which he was responsible malfunctioning with product being destroyed. The supervisor accused Bibby of sleeping on the job. Bibby asked for permission to go to the hospital, but was told as he was leaving that he was fired. He was then hospitalized for several weeks for treatment of depression and anxiety. When he tried to negotiate a return to work, Bibby said he was offered $5,000 and six months of unemployment benefits if he resigned. He rejected the offer and later won reinstatement with backpay in an arbitration. But Bibby claimed he was targeted for harassment as soon as he returned. On his first day back, he said, he was assaulted in a locker room by a co-worker who told Bibby to get out of the locker room, shook his fist in Bibby’s face, grabbed him by the shirt collar, and threw him up against the lockers. He claimed the same co-worker came after him again a month later, driving a load of pallets on a forklift to trap Bibby on a staircase platform. Bibby claims the co-worker yelled, “Everybody knows you’re gay as a three dollar bill,” and “everybody knows you’re a faggot.” When Bibby filed a grievance with his union, the co-worker was suspended. But Bibby says the union later asked him to withdraw his complaint and ultimately brought a grievance for the co-worker that resulted in his reinstatement. Bibby claimed that his supervisors also harassed him by yelling at him, ignoring his reports of problems with machinery, and arbitrarily enforcing rules against him in situations where infractions by other employees would be ignored. He also claimed that graffiti of a sexual nature — some even bearing his name — was written in the bathrooms and allowed to remain on the walls for much longer than some other graffiti. Judge Barry found that while Oncale emphatically endorsed a plaintiff’s right to pursue a sexual harassment claim premised on harassment by someone of the same sex, “the question of how to prove that same-sex harassment is because of sex is not an easy one to answer.” When the harasser and victim are of the opposite sex, Barry said, it is easy to draw the inference that the harasser is acting because of the victim’s sex. But “these inferences are not always so clear when the harasser and victim are of the same sex,” she wrote. Barry found that there are at least three situations in which same-sex harassment can be seen as discrimination because of sex. The first, she said, is “where there is evidence that the harasser sexually desires the victim.” When a gay or lesbian supervisor treats a same-sex subordinate in a way that is sexually charged, she said, it is reasonable to infer that the harasser acts as he or she does because of the victim’s sex. The second situation occurs, she said, “where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace.” As examples of the second situation, Barry cited a case in which a woman chief executive officer of an airline believes that women should not be pilots and might treat women pilots with hostility amounting to harassment, and a male doctor who believes that men should not be employed as nurses, leading him to make harassing statements to a male nurse. “In each of these hypothetical situations, it would be easy to conclude that the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function, and, therefore, amounted to discrimination because of sex,” Barry wrote. In the final situation, Barry said, the 7th Circuit has held that a plaintiff can prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser’s conduct was “motivated by a belief that the victim did not conform to the stereotypes of his or her gender.” Summarizing, Barry said, “there are at least three ways by which a plaintiff alleging same-sex sexual harassment might demonstrate that the harassment amounted to discrimination because of sex — the harasser was motivated by sexual desire, the harasser was expressing a general hostility to the presence of one sex in the workplace, or the harasser was acting to punish the victim’s noncompliance with gender stereotypes.” And that list isn’t exhaustive, she said, because “based on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available.” But in every such case, Barry said, the plaintiff has the ultimate burden of proving that the harassment was “because of” his or her sex. Bibby, she said, “simply failed in this respect.” In his suit, Barry said, Bibby never argued that he was being harassed because he was a man. “There was no allegation that his alleged harassers were motivated by sexual desire, or that they possessed any hostility to the presence of men in the workplace or in Bibby’s particular job. Moreover, he did not claim that he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave or that as a man he was treated differently than female co-workers,” Barry wrote. “His claim was, pure and simple, that he was discriminated against because of his sexual orientation. No reasonable finder of fact could reach the conclusion that he was discriminated against because he was a man.” Coca-Cola Bottling was represented in the appeal by attorney Michael G. Tierce of Schnader Harrison Segal & Lewis.

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