WASHINGTON – A federal appeals court in Richmond has dismissed a suit filed by a Linthicum, Md., man who claims he was sexually harassed by his male boss at Baltimore Gas and Electric Co.
A three-judge panel of the Fourth U.S. Circuit Court of Appeals said allegations made by George E. Hopkins Jr., 47, did not add up to sexual harassment.
The law “does not attempt to purge the work place of vulgarity,” the judges wrote in the opinion released Tuesday.
The judges left unanswered, however, the question of whether same-sex sexual harassment is a legally actionable charge covered by the Civil Rights Act of 1964.
“The federal court system is becoming increasingly hostile toward civil rights claims in general – sexual harassment cases included,” said Lee Hoshall, Hopkins’ attorney.
Hopkins, a computer graphics and photography teacher at Anne Arundel Community College, worked as a color photographic technician for BG&E from 1985 until 1993. His immediate supervisor was Ira Swadow, according to the court’s opinion.
Hopkins claimed that throughout his employment at BG&E, Swadow sexually harassed him and created a hostile work environment, the court document said.
Among the 13 incidents Hopkins described were Swadow asking Hopkins whether he had sex with anyone over the weekend; holding a magnifying glass over Hopkins’ crotch and asking, “Where is it?;” asking Hopkins, “On a scale of one to 10, how much do you like me?” and frequently commenting on Hopkins’ appearance and touching him in an unwanted manner, the court document said.
Hopkins also claimed that in 1991, while preparing to leave on a business trip from Hopkins’ home, Swadow found an unloaded gun in the house and pointed it at him.
On several occasions, Hopkins said he asked Swadow to stop the behavior. In late 1989, Hopkins complained to his supervisors about Swadow’s sexual comments and jokes.
BG&E responded with an internal investigation and reported that “practically all of the section’s employees engage in joking and comments of one kind or another” but such comments were “not offensive” and were not “intended to be so,” the court document said.
BG&E management told Hopkins that Swadow was “under close scrutiny” and that “none of this would happen in the future.” Hopkins appeared to be satisfied with the response, the court document said.
But a year later, Hopkins filed a sexual harassment charge with the Equal Employment Opportunity Commission.
Both Hopkins and Swadow were dismissed in October 1993 when BG&E eliminated the Photographic Services Unit and its 13 positions.
Hopkins “believes he was terminated because of his actions in opposing the harassment and his actions in filing a complaint,” Hoshall said.
Hopkins sued BG&E in December 1993, alleging a sexually hostile work environment and retaliation in violation of the Civil Rights Act.
In December 1994, the Federal District Court in Baltimore ruled in favor of BG&E on the basis that same-sex sexual harassment is not covered by the Civil Rights Act. It made its decision on summary judgment – without a trial – assuming Hopkins’ claims to be true, said J. Michael McGuire, who represented BG&E.
Tuesday’s decision again sided with BG&E.
The judges said Hopkins failed to make his case of a hostile work environment.
McGuire, of the law firm Shawe & Rosenthal in Baltimore, said Hopkins’ allegations would not constitute sexual harassment even if they were true.
He said Hopkins described “juvenile, trivial conduct that has the sexual charge of an Abbott and Costello movie.”
The EEOC and the American Civil Liberties Union Foundation filed briefs with the court on Hopkins’ behalf.
Hoshall said Hopkins now has two choices of action: to ask for a review by the entire Fourth Circuit, or to file with the U.S. Supreme Court. He said his client has not yet decided how he will proceed.
McGuire, however, is confident BG&E will prevail. “Frankly, I think the chances of either of these being granted by either court are remote,” he said. – 30 –