Hampel v. Food Ingredients Specialties, Inc.; To Prove That Your Same-Sex Co-Worker Sexually Harassed You, First Prove That He Was Sexually Attracted To You

• Author: Diane L. Bobak
• Position: Professor Weatherspoon for his direction and encouragement
• Pages: 911-946

The author would like thank Professor Weatherspoon for his direction and encouragement, the Ohio Civil Rights Commission, the Ohio Attorney General's Office, Civil Rights Section and ETTA.

Page 911

Introduction

It is illegal in Ohio for a man to sexually harass another man in the workplace.¹ In Hampel v. Food Ingredients Specialties, Inc.,² however, the Supreme Court of Ohio interpreted a male defendant's sexually charged language as shop talk, rather than sexual harassment.³ In Hampel, the defendant, a male supervisor, berated a male employee with language that included a demand for the employee to perform oral intercourse on him.⁴The court acknowledged that although the supervisor's statements had sexual content, however the court found that it did not rise to sexual harassment.⁵ The court then suggested that it would have found sexual harassment if the defendant was homosexual.⁶ Hinged on the defendant's denial that he was homosexual, the court made the presumption that the defendant's conduct was not sexually motivated. Without sexual motivation, the court held that the gender-based component of a sexual harassment claim did not exist.⁷ Further, the court concluded that without the element of gender, the defendant's conduct did not rise to sexual harassment..⁸ Hampel served to establish that a plaintiff in a same-gender sexual harassment case must prove that their harasser was sexually attracted to them.⁹

When considering traditional male-female sexual harassment claims, the Supreme Court of Ohio assumes that there is an inference of sexual desire between parties of the opposite sex.¹⁰ However, when the court considers same-gender sexual harassment claims, it adopts this inferencePage 912 only if the harasser is homosexual. Therefore, the court's decision in Hampel creates a higher burden of proof in Ohio for victims of same-gender sexual harassment than for victims of traditional, male-female sexual harassment.

The court erred in Hampel when it glossed over the defendant's admission that he would not have displayed the same sexual conduct to a woman.¹¹ The defendant's admission proved that his conduct fit the plain meaning of sexual discrimination: exposing members of one gender to disadvantageous terms or conditions of employment to which members of the other gender are not exposed.¹² The court in Hampel interpreted the defendant's admission as his personal code of honor towards women, instead of interpreting the defendant's conduct as sexual discrimination towards men.¹³

To the extent that the court's decision in Hampel acknowledged same-gender sexual harassment, it agreed with the United States Supreme Court's decision in Oncale v. Sundowners Offshore Service.¹⁴ Oncale was the Court's first decision recognizing same-gender sexual harassment under Title VII of the Civil Rights Act of 1964, as amended ("Title VII").¹⁵Title VII prohibits discrimination against any individual with respect to compensation, terms, conditions, or privileges of employment because of sex.¹⁶

Although the Court in Oncale used certain tests for determining what constitutes same-gender sexual harassment, the Supreme Court of Ohio in Hampel failed to apply these tests. For instance, the Hampel court did not apply an objective standard, which would have focused on the defendant's intent to harass. Using an objective standard, the court would have considered whether the defendant was motivated by animus toward men in the workplace or whether the defendant harassed with the intent of intimidating subordinates or exploiting his supervisory power. Instead, the court considered only whether the defendant was motivated by his sexual desire for the plaintiff.¹⁷

The Supreme Court of Ohio's misapplication of Oncale could potentially result in Ohio courts dismissing all claims of same-gender sexual harassment involving heterosexual harassers. At the very least, thePage 913 holding in Hampel will discourage victims of same-gender sexual harassment from filing a suit under Ohio law.

This comment will begin with a review of the facts of the Hampel decision. Section II will outline the legal framework of sexual harassment. Next, Section III will consider the evolution of same-gender sexual harassment. Section IV will analyze the Ohio Supreme Court's decision in the Hampel case. Lastly, this comment will address the future implications of the Hampel decision, as well as propose a resolution to the present test for same-gender sexual harassment.

I Statement Of The Case

Laszlo J. Hampel worked as a cook for Food Ingredients Specialties, Inc. from January 1988, until he resigned on May 15, 1996.¹⁸ Hampel left his job after becoming depressed, homicidal, drained, and exhausted as a result of the conduct of his supervisor and employer.¹⁹ He filed a suit asserting that his employer and supervisor subjected him to "a sexually hostile work environment and retaliat[ed] against him for complaining about sexual harassment, and that they intentionally caused him severe emotional distress."²⁰ Ultimately, Hampel was diagnosed with depression, post-traumatic stress disorder, and severe emotional distress.²¹

Hampel's troubles began on April 17, 1995, when he complained about work conditions to his supervisor, Jerry Hord.²² The court quoted the dialogue as follows:

Hampel: I'm fed up with the way things are running around here, all this product, and no bins to put it in. One of these days I am going to blow.

Hord: Hey, Laz, you can blow me. Hampel: What did you say?

Hord: I said, you can suck my dick. Hampel: I'm frustrated because there are no bins and you tell me to suck your dick? I don't want to think my supervisor is a faggot.

Hord: But Laz, I only want you to suck my dick.

You're the only man in the world that I want to suck my dick. Danny and Ed don't do anything for me.

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Hampel: Man, you're sick. Coworker: That is really sick, Jerry. Hord: But Laz, I want you to taste my cum and go, umm, umm, umm, and I want you to wear my pearl necklace.

Hampel: Man, you're really sick. I'm out of here.²³

The next day Hampel went to the vice president of manufacturing and filed a grievance against Hord.²⁴ The vice president, the manager of human resources, and the manager of process control questioned Hampel about the incident.²⁵ Hampel left the meeting feeling that he was interrogated and as if they were upset with him for causing problems for Hord.²⁶ On the same day, Hord offered, what Hampel felt was an insincere apology.²⁷ After Hampel put his grievance in writing, Hord retaliated by filing a report on Hampel about a poor job performance.²⁸

The employer investigated Hampel's grievance and concluded that Hampel's account of the prior incident with Hord was truthful and accurate.²⁹ However, the employer never notified Hampel that it agreed with Hampel's interpretation of the events.³⁰ The employer gave Hord a written warning, which was one of the least severe forms of discipline at the company.³¹ After continued problems, Hampel told his employer that he could not work for Hord and requested that either he or Hord be moved.³² The employer refused to grant Hampel's request, and Hord continued as Hampel's supervisor.³³ After a short time, Hord was rotated to another area, and, until January 1996, Hampel and Hord's shift overlapped by only one hour a week.³⁴

Hord persisted in harassing Hampel.³⁵ Hord criticized Hampel for minute details and reported him for cleaning errors.³⁶ Hord refused toPage 915 allow Hampel to take the same shortcuts that he permitted other employees to take.³⁷ Hord also scrutinized Hampel's work more closely than he inspected the work of Hampel's co-workers.³⁸ Hord refused to let Hampel leave on slow nights, but he let other employees leave.³⁹ Hord inspected Hampel's work so closely that he usually found something wrong.⁴⁰ He once inspected Hampel's cleaning by wiping a white cotton glove on his workstation.⁴¹ Hord displayed the dirty glove to other workers.⁴² On another occasion, Hord ran up to Hampel, stood six inches from Hampel's face, and shouted, "you get out of my department right now. I don't ever want to see you again."⁴³

During this time, Hampel made several requests to change his position so that Hord would not be his supervisor.⁴⁴ All of his requests were denied.⁴⁵ At the same time, Hord received two merit pay increases and Hampel was denied a promotion.⁴⁶

Hord was reassigned as Hampel's full-time supervisor in January 1996.⁴⁷ A few days later, Hord asked Hampel if he wanted to work the day shift. Hampel expressed interest solely to get away from Hord.⁴⁸Hampel's coworker told Hampel that he heard Hord say he intended to follow Hampel to the day shift.⁴⁹ Hampel was enraged, and his coworkers teased him about Hord following him.⁵⁰ Hord was aware of the teasing, but did not do anything to stop it, nor did he explain to Hampel that it was not his intention to follow him to the day shift.⁵¹ On January 5, 1996, Hampel talked to his employer about his concern that Hord would follow him to the day shift.⁵² The employer investigated and concluded that incident was a result of a prank by coworkers and that Hord was not involved.⁵³ Despite finding that the...