Courts have recognized same-sex harassment claims based on a failure to conform to gender stereotypes – such as when a male plaintiff is harassed for being effeminate or exhibiting traditionally feminine characteristics (see my prior blog post on harassment of a male ironworker because of his use of Wet Ones instead of toilet paper!).  In an interesting variation on this claim in Rachuna v. Best Fitness Corp., a male fitness instructor sued his employer for harassment because he didn’t fit the stereotype of being “sexually loose, promiscuous and predatory,” like his harassing male supervisor.  (Well, there is definitely a stereotype of studly, oversexed male trainers…something to do with all those muscles and sweat…)

The employer asked the Court to dismiss the claim.  The employer argued that same-sex harassment claims required that the employee not only allege that the harasser believed the employee  didn’t confirm to the stereotype of a heterosexual male, but specifically allege that he was harassed for being effeminate.  In support of its argument, the employer cited a number of cases about the harassment of effeminate males.

The Court rejected the employer’s argument, however, stating that these cases do “not mean that these are the only circumstances that can support a claim of same-sex harassment based on gender stereotyping.”  Here, the employee alleged that his supervisor expected men, including the employee, to join in the “lewd, promiscuous and predatory talk” and that the supervisor targeted the employee for refusing to join in.  The Court found these allegations were sufficient to state a claim of same-sex harassment.

So, a same-sex harassment claim isn’t just a claim that the employee is too gay, but can also be a claim that he isn’t enough of a male chauvinist pig – how’s that for a sexual stereotype?  (I keep imagining the supervisor singing that #1 song from a few years back, “I’m too sexy…”).