by Art Gutman Ph.D., Professor, Florida Institute of Technology
On May 20, 2010, Judge Christopher A. Nuechterlein of the Northern District of Indiana ruled that a single prank in which one firefighter rubbed his groin on a colleague’s arm did not constitute same-sex harassment. (Banacki v. South Bend Fire Dep't, N.D. Ind., 2010 U.S. Dist. LEXIS 50186). The judge ruled that a single incident was not sufficiently severe or pervasive to create a hostile work environment. The judge also ruled that because it was a prank, there was no evidence of a violation “because of sex.” The ruling leaves me wondering what would happen if Banacki would have experienced a steady diet of “pranks” sufficient to interfere with his ability to do his job. Such actions would be pervasive; would they also fail the “because of sex” standard? This is a major loophole in same-sex harassment cases. The interested reader should compare the ruling in Rene v. MGM Grand Hotel (2001) [(CA9 2001) 243 F.3d 1206], in which the 4th Circuit rejected a “horseplay” defense to same-sex harassment to McCown v. St. John’s Health System (2003) [(CA8 2003) 349 F.3d 540], in which the DC Circuit accepted this defense even though the actions in both cases were clearly severe and/or pervasive.
