Same-sex harassment suit against BGE dismissed

December 30, 1994|By Kim Clark | Kim Clark,Sun Staff Writer Sun staff writer John Fairhall contributed to this article.

A male boss who makes unwelcome sexual advances to a male subordinate is not committing illegal sexual harassment -- even though the same behavior toward a female worker could violate federal law, a federal judge in Baltimore has ruled.

In the first ruling of its kind in federal court here, Senior U.S. District Judge Alexander Harvey II dismissed a sexual harassment lawsuit against Baltimore Gas and Electric Co. Wednesday, saying that federal anti-discrimination laws do not cover cases in which a person sexually harasses another person of the same gender.

The ruling drew surprise and opposition from sexual harassment experts and some employment lawyers, but relief from attorneys who represent employers around Maryland.

It is "quite sweeping and quite controversial," said Marley Weiss, associate professor at the University of Maryland School of Law. "I don't agree with" the ruling on same-sex harassment, she said.

However, Ms. Weiss said she did agree with Judge Harvey's other reason for throwing out the lawsuit filed by former BGE employee David E. Hopkins.

In the 35-page decision, Judge Harvey said that since Mr. Hopkins' supervisor allegedly harassed men and women alike, Mr. Hopkins cannot win a lawsuit claiming he was a victim of illegal gender discrimination.

Mr. Hopkins had charged that his supervisor questioned him about his sexual activities, once pointed an illuminated magnifying lens above Mr. Hopkins' crotch, and another time found him in the men's room, pretended to lock the door and said, "Ah, alone at last."

"If [the supervisor] harassed everybody, then the district judge is correct -- there is not a claim of sexual discrimination," Ms. Weiss said.

While Judge Harvey's ruling on same-sex harassment does not establish a binding precedent in the 4th federal circuit, which includes Maryland, Virginia, West Virginia and the Carolinas, it is expected to be influential in deciding similar cases.

The ruling "will have a persuasive effect because Judge Harvey is well-respected," said Jay Fries, an employment law expert who represents Baltimore-area employers.

Growing controversy

Judge Harvey's decision contributed to a growing controversy over how same-sex harassment cases should be treated. Federal courts in other states have said same-sex harassment is punishable under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex or national origin. But other courts have followed the reasoning used by Judge Harvey.

Maryland law also prohibits sexual discrimination. But while federal law allows winners of harassment suits to collect compensatory and punitive awards, state law allows much less in damages. If the harassment has not cost the victim a job or a raise, for example, the state can only order the harasser to stop.

Lee Hoshall, assistant general counsel for the Maryland Human Relations Commission, which enforces Maryland's anti-discrimination laws, said that he disagreed with the ruling, and that he would prosecute similar cases under state law.

"I strongly disagree with that" ruling, Mr. Hoshall said. "This agency will continue to investigate and prosecute cases of same-sex harassment so long as it is harassment based on a person's sex, whether it is a male harassing a female or a male harassing a male," he said.

While the ruling might offer some protection to employers, it probably will not result in a flurry of same-sex harassment at the workplace, Mr. Fries said.

Release from liability

"Most employers probably, if they know about this kind of conduct going on, want to stop it anyway," he said.

"But to the extent this ruling releases companies from liability," it is a relief to employers increasingly worried about lawsuits, he said.

In his ruling, Judge Harvey said Mr. Hopkins may have been justifiably offended by crude comments made by his boss, but he didn't have a harassment case under existing federal law.

"This court holds that Title VII does not provide a cause of action for an employee who claims to have been the victim of sexual harassment by a supervisor or co-worker of the same gender," Judge Harvey ruled.

In dismissing Mr. Hopkins' suit, Judge Harvey also noted that a female BGE employee had complained to company officials that she had been sexually harassed by Ira Swadow, the supervisor accused of harassing Mr. Hopkins.

Since the federal law bars harassment based on gender, and Mr. Swadow apparently harassed men and women equally, there was no basis for a sexual harassment suit by Mr. Hopkins, Judge Harvey wrote.

'Offensive to all'

"The record here indicates that [Mr.] Swadow was crude, insensitive and offensive to all of his employees, as well as to other persons not employed by BG&E," Judge Harvey observed.

As a result, he said, "no reasonable juror could find on the present record that [Mr.] Swadow singled out and targeted [Mr. Hopkins] for harassment on account of [his] sex."

Mr. Hopkins, reached at his home and informed of the dismissal yesterday, declined to comment, saying only that he would appeal the decision.

E. Ellis Justis Jr., an attorney for BGE, said that the company was pleased by the decision, and that BGE had investigated the charges of harassment and had found no evidence of a problem.

Judge Harvey found that many of the incidents alleged by Mr. Hopkins were "essentially trivial conduct."

Both Mr. Hopkins and Mr. Swadow lost their jobs as part of BGE's restructuring and subsequent layoffs last year.

Mr. Swadow, reached by telephone at his home yesterday, denied that he made any crude comments to Mr. Hopkins or anyone else. He said he didn't know of the federal lawsuit, and had never been called to give a deposition or testify.

"All his claims are totally untrue," he said, insisting that Mr. Hopkins' former co-workers would confirm that "it didn't happen. No one backs him up."

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