Alleged Harasser's Sexual Orientation Relevant in Same Sex Harassment Cases

There has been a lot of news coverage lately of Rep. Eric Massa’s resignation and apparently related allegations of harassment of male staffers.  One question that has been asked several times is whether Massa is gay.  In response, some have dismissed such questions as inappropriate.  (I was going to link an article but most have inappropriate language, so Google it if you don’t believe me).  Interestingly enough, if this drama were being played out in the context of a sexual harassment lawsuit, the question of the alleged same sex harasser’s sexual orientation would be relevant. 

In same-sex workplace harassment cases, demonstrating that the harassing conduct was tinged with offensive sexual connotations is not sufficient to prove the discrimination was “because of sex,” which is an essential element.  Title VII forbids only discrimination because of sex.  Courts have held that there are three ways that a plaintiff alleging same-sex sexual harassment can demonstrate that the harassment was because of sex:

1. The harasser was motivated by sexual desire;
2. The harasser was expressing a general hostility to the presence of one sex in the workplace; or
3. The harasser was acting to punish the victim's noncompliance with gender stereotypes.

Based on everything I’ve read about the Massa situation, if a male staffer was to pursue a claim, the first approach above (i.e. motivated by sexual desire) would be the natural choice.  Let me know what you think – mchumley@kmklaw.com.