The Fifth Circuit Court of Appeals recently ruled for the plaintiff in a same-sex sexual harassment matter. Cherry v. Shaw Coastal, Inc., No. 11-30403 (5th Cir. Jan. 19, 2012), available at http://www.ca5.uscourts.gov/opinions/pub/11/11-30403-CV0.wpd.pdf. A supervisor sent the plaintiff sexually charged text messages and regularly touched the plaintiff. Both the plaintiff and the plaintiff’s immediate supervisor complained to management. When the company failed to take action, the plaintiff resigned and sued. The jury found for the plaintiff, but the district court overturned the jury’s verdict. The plaintiff appealed.
The Court stated that a plaintiff may support a claim of same-sex harassment by providing credible evidence that the harasser is homosexual, such as evidence that the harasser intended to have sexual contact with the plaintiff or evidence that the harasser made same-sex sexual advances to others. Here, the plaintiff presented sufficient evidence that the harasser’s conduct was severe and pervasive as well as sexual in nature; one text message could be taken as an explicit sexual proposition and the harasser repeatedly touched and caressed the plaintiff. Evidence also supported the jury’s finding that the employer did not take prompt remedial action to end the harassment. The Court vacated the district court’s order and remanded the case to the district court with directions to enter a judgment on the verdict.
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