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Tuesday, May 28, 2024 | Back issues
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Ignoring Fishy Horseplay Is Sexual Harassment

BATON ROUGE (CN) - A federal judge should not have based an engineer's sexual harassment claims on whether the offending male supervisor was gay, the 11th Circuit ruled.

While working for Shaw Coastal on a survey crew, John Cherry said he endured months of harassment from his supervisor, Michael Reasoner. The interactions allegedly started with Reasoner making Cherry uncomfortable by brushing against him, escalating to more obvious physical contact like Reasoner putting his hand on Cherry's butt.

Reasoner also regularly talked about Cherry's looks, asking him to take off his pants and his shirt. By the next month, Reasoner was sending Cherry explicit text messages, like, "I want cock," and "ur 2 sexy. U drive me insane. ... Ur sexy voice puts me to slumber."

Using a nickname for his penis, Cherry also sent a text saying, "your missing the dipper."

Cherry and his direct supervisor, Scott Thornton, reported the interactions to a project manager and another superior, but they dismissed the reports as "horsing around" and never reported it to human resources. Thornton had said Reasoner touched Cherry, "like I do my wife."

Shaw fired Reasoner after Cherry resigned, but the company still had to face the former employee's civil claims.

Though the Baton Rouge, La., federal court threw out some of Cherry's claims, it let the sexual harassment charge proceed to the trial. Finding that sexual harassment had occurred, and that Shaw failed to address it, the jury awarded Cherry $500,000.

But the judge entered judgment as a matter of law for Shaw after finding that the evidence did not prove Reasoner "has a sexual interest in men."

To show sexual discrimination, a plaintiff alleging same-sex harassment must "show that the harasser made explicit or implicit proposals of sexual activity and provide credible evidence that the harasser was homosexual,' according to the trial court. It also found the conduct was not severe and pervasive, and that Shaw took prompt remedial action in response to Cherry's complaints.

On Cherry's appeal, the 5th Circuit reinstated the jury's harassment finding.

"Sexual harassment is a form of discriminatory treatment, and applies in any situation where there is discrimination 'because of' sex, whether it be between members of the same or opposite sexes," Judge W. Eugene Davis wrote for a three-judge panel.

Cherry "presented more than sufficient evidence to support the conclusion that Reasoner's harassment was sexual in nature. The text message 'I want cock' could be taken as an explicit sexual proposition, as could Reasoner's invitation to Cherry to stay at his house and wear his underwear. Reasoner repeatedly physically touched and caressed Cherry's body, which was apparently offensive enough that Thornton, having witnessed the behavior, felt compelled to complain to their supervisor."

The panel also disagreed also that the sexual harassment was not severe and pervasive.

"'Deliberate and unwanted touching of ... intimate body parts can constitute severe sexual harassment,'" the 11-page decision states, citing precedent.

Evidence also supports the jury's finding that Shaw did not take prompt remedial action.

"Both Thornton and Cherry complained to their supervisors to no avail," Davis wrote. "Thornton began reporting the harassment as early as March, and made an estimated ten complaints about it in two months. Cherry began making complaints in May. [Michael] D'Angelo, the supervisor to whom Thornton and Cherry initially complained, was required by company policy to report those complaints to human resources, but instead continued to insist to both Thornton and Cherry that Reasoner was just 'horsing around.'... When the human resources office finally did become involved, it initially took no action ... Cherry presented a number of documented complaints and had concrete proof of text messages, and Thornton was an eyewitness who supported his allegations. The human resource staff's decision not to act because of 'insufficient evidence' could reasonably be interpreted as a failure to take prompt remedial action."

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