Title VII allows for claims of sexual harassment even where the alleged harasser is the same gender as the victim.  To prevail on a claim of Title VII sexual harassment based on a hostile work environment, a plaintiff must first establish that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment.  A plaintiff must also prove that the conduct at issue constituted discrimination “because of sex.”

When a plaintiff alleges a hostile work environment based on sexual harassment, “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).  Put another way, there is no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id.

However, workplace harassment does not automatically constitute sexual harassment or discrimination “merely because the words used have sexual content or connotations.” Id. at 80.  The critical inquiry is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).

The U.S. Supreme Court described three evidentiary routes by which a plaintiff could establish a clear inference of discrimination in a same-sex harassment suit: (1) “if there were credible evidence that the harasser was homosexual;” (2) “if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace;” or (3) “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” 523 U.S. at 80-81.  The Court also emphasized that “[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimin[ation] . . . because of . . . sex.’” Id. at 81 (emphasis omitted).

If you are being sexually harassed at work, regardless of whether the alleged harasser is the same gender as you, it is always smart to contact a New York sexual harassment attorney to learn all your rights.

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