Male-on-male "horseplay" leads to Title VII liability.

There's no federal law prohibiting harassment, or bullying, or physical horseplay. So when does male-on-male “sexual horseplay” cross the line and become what Title VII prohibits – discrimination against an individual “because of such individual’s … sex”? Smith v. Rosebud Farm (7th Cir 08/02/2018) [PDF] provides one rather simple example – a mixed‐sex workplace where men and women interacted daily, and only men were groped and taunted.

Smith's Title VII claim that he suffered several years of ongoing sexual and racial harassment from his male coworkers and supervisor resulted in a jury verdict in his favor. The 7th Circuit affirmed, turning away the employer's assertion that Smith’s evidence demonstrates that the other men in the shop engaged in “sexual horseplay,” and not sex discrimination.

Smith was a butcher in a small grocery store. Soon after he started, male coworkers behind the meat counter began harassing him by grabbing his genitals and buttocks, and repeatedly mimed oral and anal sex. His supervisor not only knew about the harassment, but he even participated once or twice. After four years of this, Smith filed EEOC charges claiming sexual harassment and race discrimination. His supervisor then told employees to stop “goofing off” and “horseplay,” but the employees began banging their cleavers menacingly at him and passing by him with large knives pointing out of the meat trays they carried.

The employer's post-verdict motion asserted that Smith failed to prove that his male coworkers discriminated against him because of his sex. Title VII does not ban all harassment. It prohibits harassment that discriminates against an individual “because of such individual’s … sex.” The 7th Circuit pointed out that Smith offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did, so "the jury was free to conclude that these men discriminated against him on the basis of sex."

The employer argued that this direct comparative evidence is insufficient because only male employees worked behind the meat counter. The court noted that in an all‐male environment there would be no inference of sex discrimination. But this was a mixed‐sex workplace where men and women interacted daily, and only men were groped and taunted. Because men were treated differently from women, a reasonable jury could conclude that Smith was tormented because of his sex. And that's what the jury did.