A new district court opinion out of Mississippi, Moore v. USG Corp., holds, in a same sex harassment context, the Fifth Circuit does not recognize a gender stereotyping theory of liability. The Court limits same sex harassment claims to three recognized models of proof (provided in the Supreme Court's Oncale decision). More after the jump (graphic facts)
"there are two types of evidence that are likely to be especially credible proof that the harasser may be homosexual. The first is evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons unrelated to sexual interest.Id. at 480. The second is proof that the alleged harasser made same-sex sexual advances to others, especially to other employees.Id. The Fifth Circuit found that for purposes of surviving summary judgment, the plaintiff had produced both types. He had put forth evidence that his supervisor had walked up to the plaintiff and his girlfriend, and seeing passion marks on the plaintiff‘s neck, stated: I see you got a girl. You know I‘m jealous. Id. at 476. On a later date, the supervisor had fondled the plaintiff‘s anus while the plaintiff was bending down, and the plaintiff immediately turned around and told the supervisor, I don‘t play like that and reported the matter to the employer. Id. The supervisor later that day spit tobacco on the plaintiff‘s hat, which the court found could plausibly have been evidence of the supervisor‘s anger towards the plaintiff for rejecting his sexual advance. Id. at 480. Another coworker had also filed a written complaint against the alleged harasser, alleging that he had asked him to sit on his lap and told him that he had pretty lips and that he could suck dick or suck my dick. Id. at 477."
