Dickinson, Mackaman, Tyler & Hagen, P.C.
The percentage of sexual harassment complaints filed by men with the Equal Employment Opportunity Commission (EEOC) is rising. The EEOC tracks charges filed with the EEOC, as well as state and local Fair Employment Practices agencies around the country that have a work-sharing agreement with the EEOC. The most recent data show that 16 percent of the sexual harassment complaints in 2007 were filed by men. By way of contrast, only 11.6 percent of sexual harassment charges in 1997 were filed by men. The EEOC's sexual harassment statistics may be viewed at www.eeoc.gov/stats/harass.
The EEOC does not provide statistics regarding alleged harassers, so there is no easy way to determine what proportion of complaints by men allege sexual harassment by men and what proportion allege sexual harassment by women. However, it appears that complaints resulting in lawsuits tend to involve more men than women as alleged harassers. EEOC attorneys in a March 2008 webchat, sponsored by the Society for Human Resource Management, confirmed that many sexual harassment charges filed by men allege harassment by other men.
The upshot of the statistics, and the complaints they represent, is that employers must be aware that anyone can be a victim of sexual harassment in the workplace.
Defining Sexual Harassment
It was not long ago that the concept of a man being sexually harassed was unheard of, both in the workplace and in the courts—even though Title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of sex, is gender neutral in its construction. In 1980, Title VII's general prohibition against sex discrimination was interpreted by the EEOC to also prohibit sexual harassment. The issue reached the U.S. Supreme Court in 1986 when the Court decided Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In Meritor, a female plaintiff alleged harassment by a supervisor. Specifically, she alleged that she was subjected to forced sexual intercourse, fondling in front of other employees, and that her supervisor exposed himself to her. The Supreme Court held that a plaintiff may establish a violation of Title VII by "proving that discrimination based on sex has created a hostile or abusive work environment." Notably, the Court signaled openness to claims brought by men by using gender-neutral language in its opinion: "Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet or sexual abuse in return for the privilege or being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."
The following guidance from the EEOC illustrates what constitutes illegal sexual harassment: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment." The EEOC reminds that victims and harassers may be men or women and do not need to be of the opposite sex. Additionally, a harasser may be the supervisor of the victim, but could be an agent of the employer, a supervisor in a different area of the workplace, a coworker, or even a non-employee. A complaint of sexual harassment may even come from someone affected by offensive conduct who was not the actual recipient of the harassment.
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Supreme Court Recognition of Same-Sex Harassment
The Supreme Court decided Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) in its review of the decision by the Fifth Circuit Court of Appeals stating that a male has no Title VII cause of action for harassment by male coworkers. The Supreme Court determined otherwise, holding that same-sex sexual harassment is actionable under Title VII.
The facts of the situation involved Joseph Oncale, a "roustabout" on an oil platform in the Gulf of Mexico. Oncale was on a crew of eight men and his coworkers humiliated him sexually in front of the group, physically assaulted him in a sexual manner, and threatened him with rape. He eventually left his job and later stated he left because he felt that if he did not leave, he would be raped or forced to have sex.
The Court's opinion pointed out that Title VII's prohibition of discrimination because of sex protects men and women. The Supreme Court had already rejected any presumption that an employer will not discriminate against members of his or her own race. The Court quoted a prior decision, Castaneda v. Partida, 430 U.S. 482, 499 (1977), where it opined: "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group."
The Supreme Court discussed the various ways the circuit courts of appeals had handled same-sex discrimination cases, finding erroneous the premise that there can be no sexually hostile environment without the motivation of sexual desire. Thus, homosexuality is not a prerequisite for same-sex sexual harassment. The Court also rejected the argument that liability for same-sex sexual harassment would make Title VII a general civility code for the workplace. The harassment still must be because of sex, even if it is perpetrated by someone the same sex as the victim.
Oncale explained three available avenues for a plaintiff to prove same-sex sexual harassment: (1) a showing that the harasser was homosexual, (2) evidence of harassment carried out in such sex-specific and derogatory terms that it is clear that the harasser is motivated by general hostility towards the presence of that gender in the workplace, and (3) presentation of direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.
Harassment Based on Sex or Sexual Orientation?
The Second Circuit Court of Appeals decided Simonton v. Runyon, 232 F.3d 33, in 2000. Simonton sued the United States Postal Service alleging abuse and harassment suffered because of his sexual orientation. Simonton received satisfactory to excellent performance reviews during his employment, but was subjected to such a hostile work environment because of his sexual orientation that he claims to have suffered a heart attack as a result. The abuse included derogatory and explicit comments, notes in the bathroom linking him to celebrities who died of AIDS, pornography placed in his workspace, and accusations that his homosexuality was a mental disorder. The district court dismissed his claim for failure to state a valid claim, reasoning that Title VII does not prohibit discrimination based on sexual orientation. The Second Circuit agreed with the district court, reluctantly following the guidance in Oncale which specified that a male claiming sexual harassment by a male must show he was harassed because of his sex. Harassment on the basis of sexual orientation is not actionable under Title VII. Simonton made a belated attempt to plead that he was harassed on the basis of sexual stereotypes, but the pleadings already presented to the court foreclosed that as an option.
In contrast to Simonton, the plaintiff in EEOC v. Grief Brothers Corporation, a 2004 case out of the Western District of New York (which is within the Second Circuit) prevailed on a sex stereotyping theory in a same-sex sexual harassment case. Sabo, the plaintiff, alleged repeated sexual harassment and constructive discharge when his employer failed to correct the work environment. The District Court denied the employer's Motion for Summary Judgment, finding that while Sabo was, in fact, homosexual, the principal harassers did not know he was homosexual, nor did they even think he was homosexual. Rather, they harassed Sabo because he did not conform to the stereotypical characteristics of a man and because he refused to participate in sexually explicit discussions about women. The employer argued, essentially, that this case was like Simonton, and could not be sustained because Sabo, like Simonton was harassed because of his sexual orientation, not because of his sex. This argument was unsuccessful, in part because the harassers themselves stated they did not think Sabo was homosexual.
State Civil Rights Laws
Issues of civil rights and sexual harassment have become intertwined with the state-by-state debate as to whether homosexual individuals should be recognized as a protected class for purposes of state civil rights laws. In states that do not recognize homosexuals as a protected class, an individual generally will not have an actionable claim for sexual harassment if it is found that the harassment was based on sexual orientation instead of sex. However, if the individual is being harassed because he or she does not conform to sex-based stereotypes, even if the complainant is homosexual, as in the Grief Brothers case, a valid claim may exist. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the female plaintiff presented evidence she was denied partnership because the men in the company thought she was not feminine enough for a woman. The U.S. Supreme Court held this was impermissible sex discrimination. Similarly, a male who is harassed by other males or females for not being masculine enough may have a valid claim.
If your state recognizes sexual orientation as a protected class, a homosexual individual may have a claim for harassment based on sexual orientation under state law—even without a federal claim. In addition, a federal claim for sex discrimination might be made, and might survive, if it is artfully pled, as in Grief Brothers.
Conclusion
Most employers are conditioned to recognize "traditional" sexual harassment—that category of sexual harassment where a man in a position of power harasses a woman in a subordinate position. Employers must be aware that men can be victims of sexual harassment too. A male or female harasser may be shocked to be accused of sexually harassing a man, so the best type of prevention is workplace awareness. Make sure your workplace policies specifically create awareness of same-sex sexual harassment and the possibility that men may be victims and women may be harassers. Check that your sexual harassment policies and training, and your reporting and investigation processes, are sensitive to the possibility of male complainants too.
Emily S. Pontius is an attorney with Dickinson, Mackaman, Tyler & Hagen, P.C., in their Des Moines, Iowa, office. She is a member of the firm's Employment Law Section.
The information appearing in this publication is intended to provide current information relating to employment and labor law. It is not intended as legal advice or opinion, which is provided by the Firm to clients with respect to factual situations and only upon engagement.
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