Title VII Same-Sex Sexual Harassment

Despite the existence of laws prohibiting sexual harassment in the workplace, sexual harassment is nonetheless very common, including same-sex sexual harassment, gay harassment at work, male on male harassment, and woman on woman harassment. While sexual harassment federal law does not explicitly prevent LGBT gender based harassment in the workplace, more and more courts are ruling that sexual harassment Title VII law applies equally to same sex harassment. These new legal developments were caused by an increase in the number of same sex sexual harassment claims brought in recent years.

What is Sexual Harassment?

When most people think of sexual harassment, they think of harassment of one member of a particular gender (normally women) by the other gender (normally men).

However, sexual harassment is not a legal rule based on different genders; it is a prohibition of harassing anyone because of his or her gender. In other words, the law seeks primarily to protect the sexual harassment victim and cares whether the victim was harassed based on his or her gender.

This means two things. First, either gender can be sexually harassed by anyone. Second, perpetrators of sexual harassment cannot get away with harassment simply by choosing only to harass members of their same gender.

Actionable workplace sexual harassment can occur in two instances:

• quid pro quo sexual harassment, and
• hostile work environment sexual harassment.

Quid pro quo sexual harassment is the type of sexual harassment that most people think of as illegal. Quid pro quo sexual harassment occurs when an employee is subject to unwelcome sexual conduct, and her reaction to the conduct is then used as the basis for decisions affecting the compensation, terms, conditions, or privileges of her employment.

In other words, the employee must establish that a tangible job benefit or privilege was conditioned on an employee’s submission to sexual blackmail and that adverse consequences followed from the employee’s refusal.

The issue in a quid pro quo case is whether the supervisor has expressly or tacitly linked tangible job benefits to the acceptance or rejection of sexual advances. While overt requests for sexual favors are of course prohibited, so too are implicit sexual pressures and harassing conduct.

Hostile work environment sexual harassment occurs when the workplace is permeated with sexually discriminatory and offensive comments and actions that are sufficiently severe or pervasive to alter the conditions of the employee’s work environment.

For example, frequent lewd jokes or emails containing pornographic images can create a hostile environment. Sexual harassment claims cannot be initiated simply because an employee finds one particular comment or joke offensive. There must be a continued pattern of workplace harassment.

Legal Distinctions with Same-Sex Sexual Harassment Claims

The classic case of “same sex” sexual harassment which is taught in employment law classes in law schools across the country is called Oncale v. Sundowner Offshore Services Inc. The Oncale case was a lawsuit filed in federal court by an employee working on an offshore oilrig who claimed that he was routinely hazed by his fellow male employees.

Most of the hazing incidents focused on the employee’s lack of certain male assets. The employee was routinely called a pussy and beaten for not being as manly as his fellow rig operators.

When the case went to court, the federal judge hearing the case determined that even though all of the employees were male, “same sex” sexual harassment had occurred because the employee was targeted due to his lack of male qualities, and therefore, his gender.The Oncale case and others like it are premised on the notion that harassing an employee because of his or her gender is bad. Therefore, all “same sex” sexual harassment claims must follow that same theme.

An employer is not liable for “same sex” sexual harassment claims simply because an employee is insulted by members of his or her own gender. The harassment must have been motivated by the employee victim’s gender.

In Oncale, the Supreme Court held that “same sex” sexual harassment can be shown by one of the following:

• evidence that the harasser is homosexual and that the harassment is motivated by sexual desire;
• evidence that the harasser was motivated by general hostility to employees of victim’s sex; or
• comparative evidence that the harasser treated employees of both sexes differently.

For example, if you are subjected to regular lewd jokes about your gendered appearance, ostracized by your same sex colleagues because of your gender, or if you are somehow punished for either not being “manly” or “woman” enough, you may have a claim against your employer for “same sex” sexual harassment in the workplace.

Common Signs of Sexual Harassment

Sexual harassment comes in many forms, and it is impossible to compile a complete list of the types of activities that are considered sexual harassment. However, as attorneys, we see some forms of sexual harassment more often than others.

Among the most common signs/examples of sexual harassment are:

• Jokes or insults about genitalia;
• Lewd comments or taunts regarding bodily appearance;
• Jokes or comments about the victim’s clothing or fashion style;
• The sending of sexual cartoons or pictures in letters, emails, or memos;
• Verbal sexual assaults, such as threats of rape;
• Sexually suggestive simulations (such as pelvic thrusting);
• Flirting or unwanted sexual advances;
• Demands for dates or sex;
• “Wolf whistles” or catcalls;
• Comments or questions about the victim’s social life or sexual life; and
• Physical sexual assault.

Sexual Harassment Gray Areas – Hazing and Horseplay

Hazing is generally considered to be attempts to embarrass another person or force someone to do humiliating things. While hazing may include sex-related behaviors or interactions, they may not necessarily be motivated by gender, but rather, might be simple bullying.

For example, workplace horseplay, where co-workers have a running joke of catcalling each other might not technically be sexual harassment; however, where the behavior is accompanied by sexual undertones and it affects the victim’s ability to work, it could rise to the level of a hostile work environment sexual harassment claim.

How Are You Protected By Law?

As a matter of federal law, Title VII protects victims from sexual harassment based on one’s gender. However, Title VII only applies to employers with 15 or more employees. All small employers who employ fewer than 15 individuals are exempt from Title VII’s requirements.

Many states and localities also have laws prohibiting same-sex workplace sexual harassment. For example, New York State and New York City law protects victims of same-sex sexual harassment by covering employers with four or more employees.

Thus, even in small companies employing fewer than fifteen employees, victims of same-sex harassment can file a sexual harassment claim against their employer. An experienced New York sexual harassment attorney can explain how these federal, state, and city laws apply to your case and help present your claim in the most favorable light.

Additionally, your employer’s ability to defend itself against your lawsuit depends on actions that it may or may not have taken. To access certain legal defenses, your employer must provide you with sexual harassment training.

Harassment prevention training is often the first introduction employees have to a company’s attitudes and expectations surrounding workplace sexual misconduct. In other words, it shapes their first perception of how a company’s culture handles harassment.

Your supervisors and co-workers should be properly trained on the employer’s sexual harassment policy and on concepts of bias that can result in mishandling sexual harassment investigations.

Supervisors and co-workers must also be able to recognize biases when they see them and learn to handle them in a way that facilitates a good resolution for the victim.

Human resources must also update its company sexual harassment policies regularly. If your employer has not done its best to protect you, its ability to defend itself in a lawsuit will be more limited.

What Should Victims of Same-Sex Sexual Harassment Do?

First, victims should make the decision to speak up. Workplace abusers and harassers need to be reported. Otherwise, justice will never be served for the victim. Additionally, many harassers will repeat their actions and harm others.

In fact, two U.S. Supreme Court decisions addressing hostile work environment sexual harassment, Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, make reporting workplace sexual harassment somewhat mandatory. These cases combined give employers a legal defense known as the Faragher/Ellerth defense which applies where an employer has a sexual harassment policy.

Under the Faragher/Ellerth defense, an employer is not liable for sexual harassment in the workplace where the harassed employee unreasonable failed to utilize the employer’s sexual harassment complaint procedure.

The defense is not absolute, and it only applies where the anti-harassment policy is regularly enforced and the employee was not fired as a result of the harassment. However, it is always a safe bet to report the sexual harassment pursuant to the employer’s policy just in case the Faragher/Ellerth defense may apply.

Second, once you do begin talking to either HR or your boss, be consistent. Always tell the truth and only tell the truth. You do not need to exaggerate what has happened to you to see a good result.

One of the reasons why HR investigations do not succeed is because the investigators did not find the victim to be credible. Being caught in a lie or changing your story will destroy any credibility you have, and will make fighting a subsequent legal battle more difficult.

Third, you should take the time to educate yourself on sexual harassment claims (see below) and sexual harassment law. Make sure that you know your rights and what you need to do to preserve any evidence that you may have. If you are unsure how to do any of this, you should contact a lawyer to assist in helping you gather evidence and file a claim.

Evidence of Sexual Harassment Claims and How to Get it

In general, sexual harassment lawsuits require some evidence to make a successful claim. Fortunately, your word and your statement as a victim count as evidence. Unfortunately, if all you have is your word, the case will be more difficult to win because it will depend entirely on your credibility versus the credibility of your harasser.

It is not a good place to be during trial and many cases lose for that reason. You can improve your case by gathering either direct or circumstantial evidence.

Direct evidence is the most straightforward way of proving a sexual harassment claim. Direct evidence is any evidence that directly proves your claim.

For example:

• Emails containing sexually explicit jokes or sexual advances sent to you by your supervisor;
• Recorded conversations or security camera footage; and
• Physical evidence such as prank items (dildos, panties) or ripped clothing.

Sometimes, the harassment is not as blatant as the examples given above. Instead, circumstantial evidence will need to help prove that you are telling the truth and your employer is lying. This type of evidence is known as circumstantial evidence.

While it can be more difficult to prove a sexual harassment claim based on circumstantial evidence, it can still be effective. For example, if a supervisor asked to have sex with an employee and the employee refused and was fired the next day, it is reasonable to infer that there was some sort of implied threat attached to consent for sex because the events happened very close in time.

Another example of circumstantial evidence is evidence that other employees were treated similarly in the past by the same supervisor. The more circumstantial evidence there is to support the link between the proposition and the firing, the stronger the employee’s case will become.

Employer Retaliation After Reports of Sexual Harassment

Often, sexual harassment cases also involve retaliation against the victim for complaining of the sexual harassment. Retaliation against any employee for reporting sexual harassment is illegal under Title VII. The U.S. Supreme Court held that, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

A materially adverse action could be:

• Getting fired/terminated;
• Being demoted or getting salary reduction;
• Receiving negative performance evaluations and negative references; or

Receiving a substantial change in shift assignments or job assignments.

Famous Examples of Same-Sex Sexual Harassment Cases in New York

In the case of Rosas v. Balter Sales Corp., a long-haul truck driver won a $2.2 million dollar verdict in a same-sex sexual harassment and retaliation lawsuit. In that case, Raymond Rosas, a long haul trucker, was harassed by his boss, Barry Rosenberg, in a variety of ways.

Each week, Rosenberg would draw a penis on Rosas’s paycheck, and Rosenberg also had a habit of trying to lick Rosas whenever the two met in person. When Rosas reported these incidents, Rosenberg fired him. Fortunately, Rosas was able to recover from the incident and seek justice by reporting this sexual abuse.

In the case of EEOC v. Sparks Steakhouse, the Equal Employment Opportunity Commission, which is the federal agency responsible for investigating claims of sexual harassment, settled a same-sex sexual harassment lawsuit against Sparks Steakhouse for $600,000.

A male manager of Sparks Steakhouse had been harassing several male waiters over an eight year period. The harassment included smacking the rear ends of the male waiters and attempting to touch their genitals. The employees went to the EEOC as a group when the owner of the steakhouse failed to resolve the problem internally.

Same-sex sexual harassment reports are becoming increasingly common as more victims come forward. You can seek justice against any employer who has hurt you by taking your case to court.

Have you been a victim of sexual harassment?

Does going to work give you anxiety because you are worried about whether you will be hit on or flirted with?

Have you lost your job due to refusing an employer’s sexual advances?

The Law Office of Yuriy Moshes is based in New York and New Jersey and represents victims of sexual harassment. We offer free employment legal advice and consultation to all victims of sexual harassment. If you have been harassed in the workplace, contact our law firm and allow us to help evaluate your case. We are here to help.

Disclaimer: Every case is different, and we cannot predict the outcome of every case. This article is not to be construed as offering legal advice. For more specific information about your case, contact one of our same-sex sexual harassment attorney for a free consultation.