The Crude Guy Defense

IN A LAWSUIT THAT will determine whether same-gender sexual discrimination lawsuits are recognized as valid under the Minnesota Human Rights Act, oral arguments were heard June 4 in the first case before the Minnesota Supreme Court of a male employee accusing his male supervisor of sexual harassment. Both Richard S. Cummings, who filed the original complaint in October 1995 in Dakota County District Court, and Charles E. Koehnen, Cummings's boss at S&K Trucking and Landscaping in Rosemount, are married--in fact Koehnen, a vice president at S&K, is wed to the president of the firm. Both also claim to be straight, although the verbal and physical "communications" the court will consider were of a decidedly homosexual nature. At issue is whether Koehnen violated the Human Rights Act--which prohibits "unwelcome" sexual advances and "language of a sexual nature in the workplace"--by making remarks to Cummings such as "how about sucking my little dick and make it a big dick before you go out to make me money."

Koehnen claims that his conduct was simply horseplay, fun--after all, as he stated in his affidavit, he's not gay and so his actions shouldn't have been taken seriously or be interpreted as illegal. But Cummings's complaint says that for two years at S&K, he was routinely a target of harassment from Koehnen, who allegedly told Cummings and other male employees to bend over and be shown "how a real man takes it," threatened to use Cummings's ponytail as a handle during blow jobs, grabbed his male employees' crotches and buttocks, placed tools against Cummings's genitals, and suggested that if employees didn't like it they would meet with "his high-powered deer rifle." Cummings's affidavit further accuses Koehnen of calling him a "cocksucker, fat fuck, asshole, assfuck, stupid fucking cunt," and of pushing his head into Koehnen's crotch, causing him to have nightmares, drink heavily, and fight with his wife. The statement also alleges that Koehnen threatened Cummings's life after he complained--a danger he took seriously since his boss had served with the Special Forces and had recently done time in prison.

An investigation by the state's Department of Human Rights found that there was "probable cause" to back up the allegations that the work environment at S&K was "hostile," and that there was enough evidence to support the claim that Koehnen repeatedly suggested Cummings service him with anal or oral sex in exchange for wages. Nine counts were included in the suit, each attached to a $50,000 settlement request.

But Koehnen's attorney successfully argued in district court that as a matter of law, a straight man can't sue his straight male employer for harassment, and that in this case, it couldn't be shown that the "communications" constituted discrimination. They were vulgar, yes, and offensive, perhaps. But they didn't add up to harassment as defined in the statute, because there was no proof that Koehnen had singled out Cummings based on his sex and because Koehnen claimed to be straight, stripping his homosexual remarks of any "intent."

The Minnesota Court of Appeals reversed that decision, noting that the statute only requires that a plaintiff present evidence of unwelcome advances in the workplace and that the gender or sexual orientation of either the plaintiff or the defendant is moot.

This past February, the state Supreme Court agreed to review that ruling; its decision is expected sometime in the next six months. If the appeals-court ruling is allowed to stand, the case against Koehnen will proceed to a trial court. But if the Supreme Court overturns the decision, Koehnen--and other defendants facing similar discrimination allegations--are off the hook. That would alarm the state attorney general's office, which filed an Amicus Curiae brief essentially agreeing with the position of Cummings's attorney, who says, "Whether we're talking about men harassing women or men harassing men, the language of the law here is gender neutral. My client said stop--and no still means no."