Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn’t that automatically make it unlawful sexual harassment? Not necessarily.

In Smith v. Rosebud Farm, Inc., Case No. 17-2626 (7^th Cir. Aug. 02, 2018), the Seventh Circuit Court of Appeals, which governs Illinois, Wisconsin and Indiana, recently revisited a somewhat esoteric, but important nuance in the law governing sexual harassment: “Title VII is an anti-discrimination statute, not an anti-harassment statute.” That is, unwanted sexual behavior is not necessarily actionable under Title VII simply because the conduct at issue has sexual content or connotations. There must still be evidence that it was directed at an individual because of his/her sex, or that members of one sex were treated differently than the other.

In Rosebud Farm, the plaintiff was regularly subjected to groping, grabbing and other offensive conduct of a sexual nature by the other men in the butcher shop – “sexual horseplay” according to Rosebud. The jury returned a verdict in Smith’s favor, but Rosebud argued that it was entitled to judgment as a matter of law, because, in order to prevail, Smith had to show more than unwanted sexual touching or taunting (which the company acknowledged was severe, pervasive and known to Smith’s supervisor); he had to show that is was directed at him because of his sex.

The court agreed with Rosebud’s legal premise – but found ample evidence in the record to demonstrate that men were treated differently than women at Rosebud. Only the men were groped, taunted and tormented. The female employees were left alone. This, the court held, was sufficient to show that Smith was discriminated because of his sex.

Does this mean that conduct does not constitute sexual harassment as long as both men and women are groped equally? Of course not. First, while this is an interesting nuance in the law governing sexual harassment, it is generally only raised in cases involving same sex harassment. Second, regardless of whether the conduct constitutes an act of sex discrimination in violation of Title VII, it may also constitute sexual assault, which is criminal. Lastly, and most importantly, such conduct is grounds for discipline and should never be permitted in the workplace, regardless of whether it “technically” constitutes an act of sex discrimination. In other words, if it never occurs, you never have this debate.

If you have any questions about sexual harassment, same sex harassment or responding to complaints of harassment in the workplace, feel free to contact Wessles Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.