Harassment Claim Pits Man vs. Male Boss Appeals Court to Decide How Law Applies to Same-Sex Cases

Article excerpt

An Illinois state supervisor accused of tormenting an underling with sexual comments and innuendo may soon be back in charge of the employee, after winning the first round of a sexual harassment suit.

The reason: The alleged harasser, the victim and the entire work crew are men. And that, state lawyers successfully argued in court motions, means it couldn't have been sexual harassment.

In an unusual case that could help clarify one of the hazier areas of sexual harassment law, the male state worker is suing his male supervisor on the ground that the crude and embarrassing comments were a form of "same-sex sexual harassment." A federal judge ruled against the worker last month. The case is now in an appellate court, where, experts say, virtually anything could happen. "Sexual harassment suits between members of the same sex are unusual, and the law is not at all clear," said William Schroeder, professor of law at Southern Illinois University at Carbondale. "I think it's something no one contemplated when sexual harassment first started coming into the forefront in the 1980s." Schroeder estimated that 90 percent of sexual harassment suits are filed by women against men, with another 10 percent involving men who allege harassment by women. As for same-sex harassment suits: "If it's one-tenth of 1 percent, I would be surprised," Schroeder said. The plaintiff, Illinois Department of Transportation employee Jim Shermer, sued the state last year under the federal Civil Rights Act of 1964. The suit alleges that the supervisor, John Trees, created "a sexually offensive and hostile work environment" at an IDOT facility in Springfield, repeatedly making comments in front of other workers indicating he believed that Shermer was a homosexual. A federal judge in Springfield dismissed the suit in August, in part because of the state's novel argument: As a man on an all-male work crew, it was intrinsically impossible for Shermer to prove he was the victim of sexual discrimination, a necessary component of sexual harassment. Shermer has appealed that ruling to a federal court in Chicago. "It's an unusual case," acknowledged James Baker of Springfield, the attorney representing Shermer. "But the law is made on the basis of unusual cases." Even as U.S. District Judge Richard Mills dismissed the suit last month, he made it clear the issue was far from settled. "If and when same-sex sexual harassment is actionable is an issue that will ultimately be left to the courts of appeals and the United States Supreme Court," Mills wrote. "Unfortunately . . . the various courts of appeals have been slow to act and are divided." `Offensive Banter' Shermer was part of an IDOT building maintenance crew under Trees. According to the suit, Shermer was singled out for a barrage of verbal abuse for several months in mid-1993. Trees "made sexually offensive remarks about the plaintiff in his presence and in the presence of other employees," the suit claims. "These remarks generally related to (innuendo about) the plaintiff engaging in sexual acts with members of his own sex." Shermer isn't gay, the suit says. He alleges he "suffered emotional distress, damages to his reputation, embarrassment, humiliation and other personal injuries" as a result of Trees' behavior. Shermer declined to comment last week, citing advice from his attorney. …