Taunting, joking and teasing are part of the workplace experience, especially among colleagues of the same gender. But there's a point where that taunting goes over the line, especially when the behavior is sexual in nature.
In October 2013, the 5th U.S. Circuit Court of Appeals in New Orleans upheld a discrimination claim of a male employee who was relentlessly mocked by his male supervisor and dismissed in retaliation. In EEOC v. Boh Bros. Construction, Kerry Woods accused his manager of making anti-gay slurs and mock “humping” him on the jobsite.
Although neither Woods nor his supervisor are gay and the actions did not appear to be motivated by sexual desire, Mr. Woods was awarded $450,000 in 2009, which was eventually overturned.
However, according to The Wall Street Journal, an appeals court in 2013 concluded that “there was enough evidence to support the jury's conclusion that Mr. Woods suffered discrimination on the basis of his sex and that the taunting was severe enough to satisfy the governing standard of liability.”
An Increase of Same-Sex Suits
The proliferation of same-sex harassment cases like that filed by Woods has increased substantially over the past few years. Although the Equal Employment Opportunity Commission (EEOC) does not compile data on same-sex cases, the number of claims filed by men has doubled over the past 20 years. “Anecdotally, we have noticed that here have been more cases of same-sex harassment suits,” EEOC's James Ryan told The Christian Science Monitor in 2010.
While there is no law on the books to prevent harassment based on sexual orientation, Title VII of the Civil Rights Act of 1964's guidelines in regards to sexual harassment extend to same-sex situations if “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.”
This may include a harasser who is homosexual and regularly propositions a same-sex employee, harassment based on general hostility to the presence of someone of the same gender in the workplace, or direct comparative evidence about how the harasser treated members of both sexes.
Some recent cases that pushed same-sex harassment to the forefront include:
- Oncale v. Sundowner Offshore Services – In 1998, a male oil rig worker sued his company after he was sodomized and threatened with rape with the acquiescence of his employer. The case set the precedent for same-sex suits moving forward and has been lauded as a “gay rights” case although all individuals in the case were heterosexual.
- Barrows v. Seneca Foods Corporation – Jeffrey Barrows alleged his male supervisor touched his genitals and created a hostile work environment. In February 2013, the U.S. Court of Appeals for the Second Circuit reversed a decision to dismiss his sexual harassment lawsuit.
- Help at Home – In July 2013, healthcare provider Help at Home Inc. paid more than $300,000 to settle charges that it demoted three female employees after they complained about sexual harassment from their female manager who made sexual comments, propositioned the women, and engaged in sexual activities with her girlfriend in her office
Since the Oncale case, the law has established that same-sex harassment violates Title VII, even if sexual desire does not motivate the harassment. Therefore, just as in “standard” sexual harassment cases, the same rules and regulations apply. If you feel you have been the victim of harassment, whether it is sexually motivated or it stems from a colleague employing derogatory actions to undermine your dignity, it's important to contact an experienced workplace lawyer to understand your rights and possible remedies.