by Art Gutman Ph.D., Professor, Florida Institute of Technology

On June 2, 2010, the 1st Circuit overturned a district court ruling of summary judgment for the defense in a sexual harassment case (Rosario v. Department of Army (010 U.S. App. LEXIS 11149)). There were two interesting issues in this case. First, there was no question that Ivan Arroyo, a supervisor, harassed Ruth Rosario; Rosario documented a pattern of “long-standing harassment that interfered with her work on a daily basis and ultimately caused harm to her emotional stability and health.” However, the defense argued that there was no “sexual desire” because Arroyo was not sexually attracted to Rosario. Second, the defense argued there was no discrimination because Arroyo was equally as offensive to men as he was to women (i.e., “equal opportunity harassment”). The district court accepted both arguments and ruled for the Army.

On appeal, 1st Circuit Court Judge Lipez rejected both arguments. Interpreting Justice Scalia’s ruling in Oncale v. Sundowner (1998), a same-sex harassment case, Judge Lipez ruled that proof of sexual desire in not required to prove hostile sexual harassment. Accordingly:

Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex ….. Although other cases may present more explicit evidence of sex-based motivation ….. the record here contains ample circumstantial evidence for a jury to conclude that Arroyo's behavior was triggered by Rosario's gender.

Judge Lipez also rejected the “equal opportunity harassment” argument. Accordingly:

The evidence does not show any male employee enduring Arroyo's criticism and offensive behaviors on virtually a daily basis for an extended period of time, as did Rosario. The record as a whole would thus permit a reasonable jury to conclude that Rosario was exposed to harassment that differed in both kind and degree from that imposed on male employees

The case now goes to trial unless, of course, the parties settle.

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