Same-sex employee-on-employee sexual harrassment

Bernier v. Morningstar, Inc. just came down today in the Seventh Circuit. The court found that where the employer didn't know about the employee-on-employee same-sex sexual harassment, there's no liability.

But, fortunately for the rest of us, they had to recite a wonderfully awkward set of facts to reach that conclusion:

Bernier alleges that in January 2003, Davis (a mutual fund analyst) started staring at him whenever the two passed in the hallway or when Davis was near Bernier's work area. Bernier experienced increasing discomfort with Davis's behavior. About a year later, on Friday, January 23, 2004, Bernier noticed Davis taking "an overt, purposeful, and glaring look" at Bernier's penis while they were both standing at the urinals in the men's bathroom on their floor. Bernier knew that Davis was gay . . . but he was not aware until this litigation commenced that Davis had a "lazy" left eye that sometimes made it appear that he was "looking off at something" when conversing.

If you've never plead the lazy eye affirmative defense, you're not a true lawyer.