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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Court Rejects Employer’s Argument That Same-Sex Sexual Harassment Was Just “Horseplay”

Scared terrified young woman grasped by huge hands, suffer from men aggressive rude behavior. Girl struggle with sexual harassment at work. Violence and bullying problem concept. Vector illustration.

For more than twenty years, our Marion County, Florida sexual harassment attorneys have fought for the rights of sexual harassment victims. Having represented sexual harassment victims for decades, our Ocala, Florida sexual harassment lawyers know that employers often fail to correct same-sex sexual harassment in the workplace. Instead of taking corrective action to protect the same-sex sexual harassment victims, employers frequently require their employees to continue working in a sexually hostile work environment by characterizing the harasser’s behavior as nothing more than “horseplay.” In this article, our Marion County, Florida sexual harassment attorneys explain how the recent decision in Burke v. Bonefish Grill, LLC,  Case No. 2:19-cv-02957 (E.D. N.Y. Nov. 30, 2021) demonstrates that employers cannot escape their obligation under federal employment discrimination law to stop same-sex sexual harassment by characterizing the harassment as “horseplay.”

Same-Sex Sexual Harassment Lawsuit

In that case, a man named Burke (Burke) brought a sexual harassment lawsuit against his former employer, Bonefish Grill, LLC (Bonefish Grill). Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from sexual harassment in the workplace, including same-sex sexual harassment. To violate Title VII, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment. Burke claims that Bonefish Grill violated Title VII by creating and maintaining a sexually hostile work environment.

Bonefish Grill is a seafood restaurant chain. In March 2014, Bonefish Grill hired Burke. During his tenure, Burke worked in several kitchen positions. Burke eventually came to operate the grill station, where he worked alongside a male employee named Villa. Burke alleges that Villa subjected him to unwanted sexually harassing behavior over a two-year period. He claims that Villa touched and squeezed his buttocks “whenever an opportunity presented itself for Villa,” rubbed his back, shoulders, arms, and put his hands around Burke’s waist “like a couple,” until Burke shook him off. Burke also alleges that Villa would ask when Burke “was going to let him take Burke home from the bar, or . . . to his house” for “some fun.” Burke came to believe that Villa had a sexual interest in him. Burke claims that he objected to Villa’s sexual advances and often told him to stop touching him.

Harassment Continues Despite Complaints

In February or March 2018, Burke complained to the Culinary Manager, a man named Louis. Burke testified that he told Louis that “Villa continuously touched him,” and Burke “was getting aggravated because Villa would not stop touching him.” Burke claims that Louis laughed in response, then asked whether they wanted Louis to talk to Villa. Burke declined the offer, explaining that he was “baffled” by Louis’ response and that it made him feel that Villa was “almost untouchable.”

In June 2018, Burke complained to the Managing Partner, a man named Sorenson, that Villa was sexually harassing him. Sorenson expressed skepticism about the complaint, but then initiated an investigation into Burke’s allegations. Sorenson testified that, at the end of the investigation, he found no corroborating evidence to prove that Villa sexually harassed Burke. About three weeks after making his complaint to Sorenson, Burke claims that Villa resumed touching and squeezing his buttocks. On September 17, 2018, Sorenson fired Burke for alleged attendance problems.

Victim Subjected Unwanted Sexual Conduct

Bonefish Grill filed a motion with the trial court seeking dismissal of Burke’s same-sex sexual harassment claim. In support of its motion for dismissal, Bonefish Grill maintained that Burke was not subjected to unwanted sexually harassing behavior. Instead, according to Bonefish Grill, Burke was subjected to “male-on-male horseplay.” “Common horseplay,” Bonefish Grill pointed out, does not violate Title VII’s prohibition against sexual harassment. The trial court denied Bonefish Grill’s motion for dismissal and ruled that a jury could reasonably conclude that Burke was subjected to unwanted sexually harassing behavior in violation of Title VII.

In rejecting Bonefish Grill’s contention that Villa’s behavior amounted to nothing more than “common horseplay,” the trial court explained that courts have defined sexual harassment for purposes of Title VII to “include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. In applying this definition of sexual harassment, the trial court determined that Villa’s conduct was “plainly sexual in nature.” In support of its conclusion, the trial court pointed out that Burke alleges that “Villa frequently touched his buttocks,” grabbed him “around the waist like a couple,” “massaged his back and shoulders,” and asked him to come home with him “to have some fun.” Thus, the trial court determined, a jury could reasonably find that Villa’s behavior towards Burke was motivated by “sexual desire.”

Sexual Harassment Lawyers In Ocala, FL

Based in Ocala, Florida, and representing workers throughout Central Florida, our sexual harassment attorneys in Marion County, Florida have litigated sexual harassment cases in Florida courts for more than two decades. If you have been subjected to same-sex sexual harassment in the workplace or have questions about an employer’s obligation to protect you from same-sex sexual harassment at work, please contact our office for a free consultation with our sexual harassment lawyers in Ocala, Florida. Our employees’ rights attorneys take sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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