A federal appeals court yesterday failed to settle the growing issue of whether federal law covers same-sex harassment in the workplace.
The ruling yesterday was in response to an appeal filed by George E. Hopkins Jr. of Linthicum, who claimed that he was sexually harassed over a seven-year period by his male boss while working at Baltimore Gas and Electric Co. The three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., dismissed the case, saying there was not enough evidence to show that Mr. Hopkins was the victim of sexual harassment.
But the judges split over the larger issue of whether Title VII of the Civil Rights Act, which prohibits sexual and racial discrimination in the workplace, prohibits sexual harassment in same-sex cases.
Mr. Hopkins, who worked in BGE's photographic department, sued the utility and his supervisor in 1993. He was one of the first men in the United States to sue another man for sexual harassment in the workplace, though "same-gender" sexual-harassment cases have subsequently become increasingly common, said legal experts.
"It looks like it will be left to another case in which the merits are stronger for this issue to be decided," said Jane Murphy, a University of Baltimore Law School professor and director of the school's Family Law Clinic.
She said the case points to a growing national phenomenon in which the legal system is in- creasingly being asked to redefine the view of same-sex relationships on many fronts, from adoptions to custody rights.
Some legal scholars said yesterday that courts nationwide appear so divided over the issue that what may be required is for Congress to take up the civil rights law again to clearly state whether it prohibits same-gender harassment. In fact in yesterday's ruling, Judges J. Harvie Wilkinson III and Clyde H. Hamilton wrote they thought that if Title VII was to be extended to cover same-sex harassment it should be done by Congress, instead of "by judicial fiat."
U.S. Circuit Judge Paul V. Niemeyer, who wrote the opinion in the case, said that he believes that Title VII prohibits same-gender sexual harassment. "Sexual harassment of a male employee, whether by another male or by a female, may be actionable under Title VII if the basis for the harassment is because the employee is a man," he wrote.
But Judges Wilkinson and Hamilton disagreed, saying they thought that the language Congress used in Title VII made it "ambiguous at best" whether it intended for same-sex discrimination to be cause for legal action.
J. Michael McGuire, an attorney with Shawe & Rosenthal in Baltimore, who represented BGE in the case, said that, while the judges' ruling did not answer the larger question of the law's role in same-gender suits, it did show that the utility acted correctly in the Hopkins situation.
Mr. Hopkins' former boss, Ira Swadow, has denied Mr. Hopkins' allegations.
"BGE's actions have been vindicated," said Mr. McGuire. "BGE deplores all harassment, and, in this case, Mr. Hopkins' arguments did not rise to the level of proving that sexual harassment ever occurred."
Mr. Hopkins, who claimed that he lost his job in 1993 because of his complaints to superiors about being harassed, said yesterday that he was disappointed by the ruling and hopes to carry the fight to the Supreme Court. He noted that he had never been given the opportunity in court to present witnesses and other information to support his case.
Originally, the case was dismissed by Senior U.S. District Judge Alexander Harvey II before it got to trial. He ruled that the federal law banning sexual harassment does not cover harassment when the victim and perpetrator are of the same sex.
"The crime is the same no matter what sex you are," said Mr. Hopkins. "What the judges have done is grant people who are of that ilk enormous power over their subordinates."
Lee Hoshall, Mr. Hopkins' attorney, could not be reached for comment yesterday.
But Stuart Comstock-Gay, executive director of the Maryland Chapter of the American Civil Liberties Union, which had filed a brief in support of Mr. Hopkins' case, said that while the ruling was disappointing, it was heartening that the judges had not collectively dismissed the argument that Title VII prohibits same-sex harassment.
Pub Date: 3/07/96