Same Sex Harassment
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Same Sex Harassment In the case of Oncale v. Sundowner Offshore Services, Inc. the Supreme Court ruled that same-sex sexual harassment is a form of discrimination protected by Title VII of the Civil Rights Act. The Oncale ruling gave both the employee and employer victories. 
For The Employee: The Court ruled that
men are capable of sexually harassing other men, and women are capable of
sexually harassing other women. In addition, the sexual orientation of the
individual is not important the Court ruled. A heterosexual man/woman can
sexually harass another heterosexual man/woman. A homosexual man/woman can
sexually harass a heterosexual man/woman. Therefore the sexual orientation
of either party should not be an issue when the employer investigates a complaint
of sexual harassment. In fact, the parties do not even need to be sexually
interested in each other for sexual harassment to occur. The key ingredients
that constitute sexual harassment is some form of sexual content and some
form of discrimination occurring in the workplace. Sexual Content + Discrimination = Sexual Harassment |
"Men account for 11.6 percent of all
sexual harassment cases filed with the EEOC."
For The Employer: The Supreme Court
has ruled that same-sex harassment is a form of discrimination that an employer
should not engage in or allow to occur within the workplace. The sexual
orientation and gender of the parties is not relevant to whether or not the
event is or is not a form of sexual harassment. An employer cannot claim
that a male employee or supervisor could not have engaged in sexually harassing
another male coworker because all the parties involved are heterosexual.
A heterosexual female supervisor can create a sexual harassing situation
with either another heterosexual or homosexual female employee. Sexual desire
between the people need not be present in order for sexual harassment
(discrimination) to occur. Sexual harassment
is really sexual discrimination. The Supreme Court allows for sexual talk
within the workplace up until an employee is discriminated against. An employer
does not need to ban the word "sex" from the workplace, ban employees from
commenting on how nice another employee looks, or discipline an employee
who just repeated a sexual joke that Jay Leno told on the Tonight Show. An
employee must demonstrate that the sexual content they experienced led to
discrimination the same as they would if they experienced race, national
origin, or religious discrimination. This is an important education point
for employers to educate their employees and supervisors. Sexual discrimination
occurs when sexual content leads to an unfair treatment of the employee due
to their sex. For example, a male employee is passed over for promotion because
his male supervisor hopes to start dating the less qualified female employee.
In this example, the male coworker is treated unfairly due to his sex and
the situation involves sexual content. A situation that involves sexual content
but not unfair treatment would be if a supervisor tells a female subordinate
a sexual joke about President Clinton, and does not have a history or any
plans of treating the female employee any differently then any other employee.
In this case the supervisor just told a rude joke, and did not sexually harass
the female subordinate because no discrimination occurred. On the other hand,
if this supervisor told enough sexual jokes, and the employees felt that
they were required to listen to them, the supervisor may end up creating
a hostile environment within the workplace. Supervisors who allow or create
a hostile environment for all or some employees to work in, also create an
environment where discrimination can occur. The nature of sexual
content that might develop into a discrimination situation will be judged
by the "reasonable person" standard. Okay, this is a bit vague, but, hey,
you can't have everything black and white. It basically means that
the nature of the work the employee engages in, the environment, and the
event will be judged on a case by case basis. It does not mean the background
of the person should be evaluated.  Employer Action Steps:1.) Update your sexual harassment policies to include same-sex harassment. Communicate this policy to all the employees. 2.) Educate your supervisors about same-sex harassment. 3.) Educate your employees that sexual harassment means sexual discrimination. 4.) Investigate all forms of sexual harassment quickly and fairly to all participants. Remember, that the sexual orientation of the participants is not necessarily all that important. Obtain the 2001 Employers Reasonable Care Pack: Sexual Harassment Prevention in the Workplace. Includes a 18 x 24 color poster designed to be posted in a prominent location for all employees to read. It outlines sexual harassment as defined by the EEOC and by the Fair Labor Standards Act.  $49.95  Preventing and Managing Sexual Harassment |
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| Harassment means
discrimination! Employees need to understand that sexual harassment is really
sexual discrimination under the law. If tomorrow your least favorite coworker
talked with you about the rerun of the Seinfeld Show, that involved a certain
female body part, he or she may be bothering you but not necessarily
discriminating against you. Freedom of speech rules until you suffer
discrimination by your coworker or employer. Therefore in order for sexual
harassment to take place you must have sexual content and discrimination
taking place against you. In the Oncale discussion,
the Court ruled that a "reasonable person" standard will be used in evaluating
whether or not the nature of the sexual content was harassment (discriminatory)
or horseplay. So, what exactly is a "reasonable person's" standard? No one
knows for sure, other than it will probably take a middle-of-the-road approach
in determining what is harassment versus teasing, joking, or flirtation.
For example, during
the lunch hour, a new male employee is taken to a strip bar his first week
of employment as a means of initiation to the company. The new employee refuses
to attend, but is told by his male coworkers that by not doing so he will
end up obtaining the worse assignments in the company. The new employee attends
at first but later refuses to attend these lunch hour meetings at strip bars.
The new employee later documents a pattern of negative work assignments,
poor work performance reviews, and an increase in negative comments. Another example could
occur if a female supervisor decided not to hire another woman for a particular
position, and instead hired a male employee who she is having a sexual
relationship. In fact, in this case, the supervisor could be harassing both
the male and female employees by making her choice solely on sex. The
discrimination occurs because the female suffers a tangible job loss based
on sex, and the male gains a position with the possibility of having to maintain
a relationship with the supervisor or suffer retribution.
Employee Action Steps: 1.) After you have experienced personally objectionable sexual content, ask yourself if you believe that the sexual content you experienced will lead to future discrimination against you. 2.) Monitor your environment to see if negative or positive workplace events occur because of the sexual situation you experienced. A positive workplace event might occur when you are given a promotion only to find it was due to your supervisor wanting you more available to listen to his or her sexual content. 3.) Document and obtain witnesses, if possible, to the sexual content and discrimination. Document the nature of the sexual content and discrimination, date/time, situation, and witnesses to the event. 4.) File a complaint with your supervisor or human resource (HR) department. Ask for a prompt investigation, to be reassigned during the investigation to a different supervisor if your supervisor will potentially be involved in the investigation. Lastly, ask for an outcome report. |
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