Same-Sex Harassment Not Always about Sex

A federal appeals court recently reinstated a same-sex-harassment verdict in a case involving gender stereotypes, not sexual advances. Such cases serve as a reminder to HR leaders to review the wording of their sexual-harassment policies.

Monday, October 21, 2013
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In the wake of the U.S. Fifth Circuit Court of Appeals in New Orleans restoring a March 2011 verdict that found Boh Bros. Construction Co. illegally subjected ironworker Kerry Woods to severe and pervasive harassment because Woods' superintendent perceived him to be unmanly, legal experts are cautioning HR leaders to re-examine their sexual-harassment policies.

A federal jury had awarded Woods $451,000 in damages. The lawsuit filed by the U.S. Equal Employment Opportunity Commission contended that Boh Bros. retaliated against Woods after he reported the verbal abuse and taunting gestures by transferring him to another location where he was paid less and subsequently laid off.

Boh Bros. appealed, and a three-judge panel of the Fifth Circuit reversed the jury verdict. The EEOC then asked the full court to rehear the case. In reinstating the jury verdict, the appellate court remanded the case to the trial court for proceedings to include establishing the amount of emotional damages for Woods.

The Boh Bros. case is a reminder to HR professionals of the need to review and perhaps update sexual-harassment policies to reflect the growing number of same-sex complaints."There's no question there's an uptick in these claims," says Mark Konkel, co-managing partner in the New York City office of FordHarrison, a national labor and employment law firm representing employers. "I think that's a fairly recent development."

EEOC statistics show the number of sexual harassment charges filed by men rose in the most recent period for which data is available, but the figures don't break down how many of them are same-sex complaints. Men accounted for 17.8 percent of sexual harassment charges in fiscal year 2012, compared to 16.1 percent the previous year, according to the EEOC.

The door to same-sex harassment complaints was opened 15 years ago when the U.S. Supreme Court ruled in the case of Oncale v. Sundowner Offshore Services that Title VII's protection against workplace discrimination "because of . . . sex" also applied to harassment involving members of the same gender.

In that case, Joseph Oncale was working for Sundowner Offshore Services on a Chevron USA Inc. oil platform as a roustabout in the Gulf of Mexico. He said he was the target of humiliating sexual harassment by male co-workers. All the parties were heterosexual. A federal court issued a summary judgment to the defendant, and a federal appeals court affirmed it. A unanimous Supreme Court, however, ruled in March 1998 that a man can be discriminated against by other men under Title VII, and that the offensive conduct needn't be motivated by sexual desire.

The court opinion, written by Justice Antonin Scalia, said same-sex discrimination can also occur when there is general hostility toward one gender's presence in the workplace, or by a showing that the alleged harasser treated one gender differently than the other.

Other same-sex cases soon followed Oncale. In 1999, the EEOC won a settlement for $110,000 in a case involving two male employees of a Dillard's department store in Orlando, Fla., who said a male supervisor engaged in verbal and sexual harassment of them. Two months after that, the commission settled a class action lawsuit for $1.9 million against a Minnesota meat-packing company in which male workers alleged a pattern of harassment against them by other men.

In 2000, the EEOC settled a lawsuit against a Colorado car dealership for $500,000 on behalf of 10 former salesmen who said they were subjected to crude sexual jokes and language by male managers, as well as physical harassment.

Anecdotally, there seem to be more same-sex complaints involving men than women, Konkel says. But women are hardly exempt. Just last month, the EEOC sued Wells Fargo, alleging that four female bank tellers at a Reno, Nev. bank branch were regularly subjected to lewd comments and gestures from a female service manager and another female bank teller. The bank failed to take effective action when the women complained, the EEOC maintains.

Same-sex complaints often arise in workplaces where jobs are held mostly if not entirely by one gender. "When there's gender uniformity, there is greater acceptance of language that wouldn't be acceptable in mixed company," Konkel says.  

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In the precedent-setting Oncale ruling, the Supreme Court stressed that recognizing same-sex harassment wouldn't transform Title VII "into a general civility code" because it only forbids behavior that is so objectively offensive as to adversely alter the terms or conditions of the victim's employment. The court cited a hypothetical situation in which a pro football player's work environment isn't abusive if a coach smacks him on the butt as he heads onto the field, but the same behavior would be viewed differently if the coach did the same thing to his secretary -- female or male.

"It has to be unwelcome in the first place," says Jesse Rose, a plaintiff's lawyer in harassment cases at the workplace discrimination law firm of Phillips & Associates in New York.

Title VII also states that offensive conduct only rises to discrimination when it is so "severe or pervasive" as to create a hostile or abusive work environment. "That is the universal standard for any harassment claim," says Tim Scott, a partner in the New Orleans office of Fisher & Phillips, a national labor and employment law firm that represents employers. The problem is that determining what is "severe or pervasive" varies from one jury to another, as well as among judges who are asked by defendants for a summary judgment in their favor in these cases, Scott says.

Nor can employers assume they have no liability because their workplace setting is more tolerant of crude language or behavior. Woods and Oncale worked in less than genteel environments - an oil rig and a construction crew, respectively. "That notion has become weakened by these types of decisions," Scott says.

There are steps HR managers can take to lessen the chances of same-sex complaints. One is to review, and if necessary, modify, their employer's sexual harassment policy. "Any employer not reviewing it on a regular basis is probably opening themselves up to potential litigation," Rose says.

"Take a good look at your policies and see if they prohibit conduct that courts have said is objectionable," Konkel says. Encourage employees to be respectful, he adds.

Employers might be wise to review what sorts of offensive buzzwords were used in same-sex cases that were resolved in favor of plaintiffs, Scott says. Certain pejorative words for sissy or homosexual, for example, may have been repeatedly used in some of these cases. "I think I'd work those examples into [sexual harassment] training," Scott says. "Pull examples from cases."

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