On October 5, 2016, the 7th Circuit affirmed the district court’s order granting summary judgment in favor of an employer in a same-sex sexual harassment lawsuit. Lord v. High Voltage Software, Inc., No. 13-3788 (7th Cir. 10/5/2016). The Plaintiff, a male employee, claimed that he was sexually harassed by a male coworker and fired in retaliation for complaining about it, in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). The employer claimed that the conduct of which the plaintiff complained was not sexual harassment, and that it fired him for other reasons, including his failure to immediately report the conduct that was objectionable to him. The majority opinion agreed with the district court that the conduct complained of, which consisted of repeated unwelcome physical contact in personal areas of the body, was not based on the plaintiff’s sex, male, and that he did not raise issue with the sincerity of the defendant’s explanation for its termination of his employment.

The plaintiff alleged that he was subjected to unwanted physical contact on four occasions by a male co-worker, which included poking and slapping his buttocks and grabbing him between his legs. The plaintiff objected to the co-worker immediately after each incident and told him to stop each time. However, the plaintiff did not make a formal complaint of sexual harassment until 12 days after the first incident. One day after his formal complaint, the employer disciplined the plaintiff on an unrelated matter. He immediately complained that the disciplinary write-up was in retaliation for his formal complaint of sexual harassment, and he threatened to file a complaint of sexual harassment with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of Human Rights (“IDHR”). The very next day, the employer terminated the plaintiff for failing to timely and properly report the sexual harassment, obsessively tracking the performance of his coworkers, and insubordination based on the tone of his complaint of retaliation in response to the disciplinary write-up.

The plaintiff filed a lawsuit alleging unlawful discrimination and retaliation in violation of Title VII. His discrimination claim was based on his allegation that the conduct to which he was subjected created a hostile work environment and amounted to unlawful sexual harassment. Title VII prohibits sexual harassment, which includes a hostile work environment that is either severe or pervasive enough to affect the terms and conditions of employment. A sexual harassment hostile work environment claim requires proof of four elements: (1) the plaintiff’s workplace was subjectively and objectively offensive; (2) the plaintiff’s sex was the cause of the harassment; (3) the harassment was severe or pervasive; and (4) there is a basis for employer liability. Same-sex sexual harassment is actionable under Title VII. However, the inference that the conduct was because of the employee’s sex is more difficult to draw in same-sex harassment cases where the harasser is not homosexual. Examples of actionable same-sex sexual harassment include instances where the harasser used sex-specific derogatory terms to make it clear that he is motivated by a general hostility to the presence of members of the same sex in the workplace, and where the plaintiff offers comparative evidence about how the harasser treated members of each sexes in a mixed-sex workplace. The majority opinion of the 7th Circuit held that there was no evidence that the plaintiff was harassed because of his sex. The harasser was not a homosexual; and his behavior was not indicative of sexual arousal. Because he was not targeted for harassment because of his sex, the plaintiff’s same-sex sexual harassment claim failed.

The 7th Circuit also ruled against the plaintiff on his retaliation claim. Title VII prohibits retaliation against an employee who engages in protected activity by opposing an unlawful employment practice or participating in an investigation of one. The plaintiff must prove that he engaged in protected activity, suffered an adverse job action, and that there is a causal connection between the two. The plaintiff claimed that he was fired in retaliation for complaining to human resources about what he believed was illegal sexual harassment. However, the 7th Circuit agreed with the district court that the plaintiff’s complaints did not constitute protected activity because they did not concern the type of conduct that Title VII prohibits. For a valid retaliation claim, a plaintiff must have a sincere and reasonable belief that he is opposing an unlawful employment practice. That requires a determination of whether the conduct involved an unlawful motive. The 7th Circuit concluded that no evidence suggested that the plaintiff was harassed because of his sex and, therefore, his belief that he was complaining about unlawful sexual harassment was objectively unreasonable, albeit sincere. Thus, his retaliation claim failed because he did not engage in protected activity.

Additionally, the majority opinion held that even if the plaintiff had engaged in protected activity, his retaliation claim would still fail for lack of proof of causation. The suspicious timing–fired two days after his formal complaint of sexual harassment and one day after his complaint of retaliation–supported an inference of retaliation. Nonetheless, an employer may avoid liability for retaliation by showing that the employee would still have been terminated even without his complaints about harassment. The majority found that the employer’s proffered non-retaliatory reasons–failure to immediately report the harassment and “insubordination” for the tone of his email complaint that the disciplinary action was retaliatory–were not pretext for retaliation. The plaintiff, according to the 7th Circuit, did not cast a doubt on the sincerity of the employer’s reasons. Therefore, he could not prove but-for causation.

The majority opinion in this case will likely stir up legal controversy. Indeed, Judge Rovner published a spirited dissenting opinion as to the grant of summary judgment on the retaliation claim, in which she argues that the majority opinion will undercut the protections of Title VII against retaliation and discourage the reporting of workplace harassment. Will this case go up on appeal to the United States Supreme Court? It is a candidate. Stay tuned….