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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.

How Employers Defend Same-Sex Sexual Harassment Cases: Just “Common Horseplay”

sexual harassment illustration

For more than twenty years, our Citrus County sexual harassment lawyers have litigated sexual harassment cases in Florida courts. Through their decades of experience representing sexual harassment victims, our Inverness, Florida sexual harassment attorneys know that employers attempt minimize same-sex sexual harassment by characterizing the behavior as “ordinary socializing in the workplace” or “common horseplay.” Based on such disingenuous characterizations, employers justify their failure to protect same-sex sexual harassment victims by claiming that the harassers did not intend to be offensive or did not intend to cause harm. Having downplayed the severity of same-sex sexual harassment, employers then require same-sex sexual harassment victims to continue working in a hostile environment as a condition of their employment. In this article, our Citrus County sexual harassment lawyers explain how the decision in Pimentel v. Atrium Hospitality, LP, 2022 WL 4104012 (D. Conn. Sept. 7, 2022) illustrates that a customary employer defense to same-sex sexual harassment—“common horseplay”—collapses when same-sex sexual harassment involves allegations of physical touching of a sexual nature.

Protection From Same-Sex Harassment

Title VII of the Civil Rights Act of 1964 (Title VII) makes sexual harassment an unlawful discriminatory employment practice. Under Title VII, unlawful sexual harassment is not limited to harassment from members of the opposite sex. Rather, Title VII also prohibits same-sex sexual harassment. Same-sex sexual harassment occurs when both the harasser and the victim are members of the same sex. Title VII also forbids same-sex sexual harassment regardless of the sexual orientation of the victim or the harasser. Consequently, a same-sex sexual harassment claim is not dependent on the sexual orientation of the individuals involved. To violate Title VII, same-sex sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment.

Same-Sex Sexual Harassment Lawsuit

In Pimentel, a man named Pimentel brought a same-sex sexual harassment lawsuit against his former employer, Atrium Hospitality, LP (Atrium), pursuant to Title VII. Pimentel claims that he was subjected to same-sex sexual harassment in violation of Title VII.

Atrium owns and operates the Hilton Stamford located in Connecticut. In June 2016, Atrium hired Pimentel as the Executive Chef for the Stamford Hilton. Pimentel alleges that, during his employment, two male supervisors sexually harassed him. Pimentel alleges that one supervisor, Sadutto, squeezed his nipples, pinched his buttocks, and called him “sweetheart” during work. In December 2017, Pimentel lodged a complaint regarding the alleged sexually harassing behavior by Sadutto. Following an investigation, Atrium terminated Sadutto and conducted mandatory anti-harassment training for all supervisors.

Sadutto was replaced by a man named Schwartz in July 2018. Pimentel alleges that Schwartz repeatedly pinched his nipples, repeatedly touched his buttocks, and, at a large media event, rubbed his body against Pimentel’s (from behind), squeezed his nipples, rubbed his belly, and said, “Let’s carve this little piggy” just before Pimentel was about to carve a roast pig. On August 3, 2018, Atrium terminated Pimentel’s employment.

Sexual Touching Is Not “Common Horseplay”

Atrium filed a motion with the trial court seeking dismissal of Pimentel’s hostile work environment claim. In support of its motion for dismissal, Atrium argued that the alleged harassment Pimentel experienced was not sufficiently severe or pervasive to alter the conditions of Pimentel’s employment and create a hostile work environment. In other words, Atrium argued that the alleged same-sex sexual harassment was nothing more than “common horseplay” and not conduct of a sexual nature in violation of Title VII. The trial court denied Atrium’s motion for dismissal and ruled that Pimentel’s allegations were sufficient to establish that he worked in a hostile environment in violation of Title VII.

In support of its ruling, the trial court focused the physical nature of the alleged same-sex sexual harassment. The trial court observed that Pimentel claims that he was subjected to repeated touching of his buttocks and pinching of his nipples. “The repeated touching of intimate body parts,” the trial court reasoned, “is by its nature severely intrusive and cannot properly be characterized as abuse that is minor.” The trial court further explained that repeatedly touching an employee’s intimate body parts would enable a reasonable jury to conclude that “a same-sex harasser’s misconduct was sexually motivated.” In other words, the trial court pointed out, the repeated touching of Pimentel’s intimate body parts was physical conduct of a sexual nature and evidence that the alleged harassers were motivated by sexual desire. As the alleged harassment involved conduct of a sexual nature and manifested sexual desire, the behavior was not merely “common horseplay.” Thus, the trial court concluded that a “reasonable jury could find that the conduct experienced by Pimentel—included repeated pinching of the buttocks and squeezing of the nipples—contributed to an objectively hostile or abusive work environment” in violation of Title VII.

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have dedicated their practice to fighting for the rights of sexual harassment victims. If you have sexually harassed at work or have questions about your rights as a sexual harassment victim under federal employment discrimination law, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes 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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