Can Sexual Harassment Happen When Both Parties Are the Same Sex?

Sexual Harassment
Share

The issue of whether federal law prohibiting sexual harassment included situations where both parties are of the same sex was decided by the U.S. Supreme Court in 1998. In the case deciding the issue, all the justices agreed that same sex harassment violated Title VII of the federal Civil Rights Act of 1964. Since then, many cases of same sex harassment have gone through the court system.

The Oncale Decision

The Supreme Court previously held that sexual harassment of women by men or of men by women is sex discrimination in violation of Title VII. This includes pressuring a subordinate to engage in sexual activity as a condition of employment or subjecting an employee to a hostile and abusive work environment. In Oncale v. Sundowner Offshore Services, Inc., the court ruled that Title VII also covers situations where men sexually harass men or women sexually harass women.

The plaintiff, Joseph Oncale, worked for the defendant on an offshore oil rig. The court found that several times he was forcibly subjected to sex related, humiliating actions by fellow male workers, including being physically assaulted in a sexual manner and being threatened with rape. Oncale complained to the defendant about the situation, but it took no action to help him. He stated he quit his job because he feared he would be raped if he continued to work for the defendant.

Same Sex Harassment Cases

The law doesn’t spell out exactly what sexual harassment is. Courts will look at the facts of each case and determine whether what was said and done was sufficiently hostile and abusive to be considered illegal discrimination. The depravity of the abuser (who can be in a management position, a fellow employee, customer, or contractor) is only limited by what he or she thinks he or she can get away with. Often, sexual harassment cases also involve retaliation claims where the harassed party claims negative actions by the employer as punishment for complaining about the harassment.

1. Rosas v. Balter Sales Co.

lickThe plaintiff, Raymond Rosas, drove a truck for the defendant. He was found by a Manhattan federal court jury to have endured sexual and racial harassment as well as retaliation, and the jury awarded him $2.2 million in damages in December. Balter Sales Co. is a New York City restaurant supply company, according to the New York Daily News.

Rosas claimed the following facts:

  • His boss, Barry Rosenberg, made frequent sexual advances toward him, including drawing “a picture of a penis” on his paycheck almost every week.
  • Rosenberg “would repeatedly stick his tongue out,” try to lick Rosas’s face and “would repeatedly try and grab Rosas’s buttocks.”
  • About a year after he started working for the defendant, in September 2011, Rosas asked Rosenberg to stop the harassment.
  • Balter fired Rosas in January 2012, claiming he stole boxes of restaurant equipment, and a report was filed with the police.
  • Rosas denied he stole anything. He said the boxes were delivered to the wrong place but later recovered. The criminal charges were dropped.

2. EEOC v. Michael Cetta Inc. d/b/a Sparks Steak House

In 2012, Sparks Steak House, an upscale New York City steakhouse, agreed to settle claims of same sex harassment filed by 22 male waiters in exchange for $600,000 plus taking steps to prevent harassment from occurring again, according to a U.S. Equal Employment Opportunity Commission (EEOC) press release.

The agency filed a lawsuit in federal court claiming the waiters were harassed due to their sex, chiefly by one male manager, over a nearly eight-year period.

  • The harassment included the manager groping the buttocks of the male waiters, making lewd sexual comments, and attempting to touch their genitals.
  • Many of the waiters complained to other managers and the restaurant’s owners, but the harassment did not stop.
  • Some of those making complaints suffered retaliation by being given more difficult assignments and/or being suspended.

The Italian Wine and Food Advocates Alfresco Dinner3. EEOC v. Pitre, Inc.

The EEOC filed a lawsuit on behalf of employees alleging severe sexual harassment over a 12-year period that created a hostile work environment at an Albuquerque, New Mexico car dealership owned by defendant Pitre, Inc. in 2011. The agency alleged the following facts:

  • James Gallegos was a lot attendant until he was fired in 2010.
  • He subjected other male employees to extreme and frequent sexual harassment, including exposing his genitals, asking male employees to engage in sexual acts, trying to remove the clothing of other male employees, touching or trying to touch the genitals of male employees, and forcing new male employees to ride in a locked car with him and others while exposing his genitals and groping the new employee.
  • Gallegos’s actions were done openly, encouraged by Pitre’s general manager, and were known (or should have been known) by other managers, the defendant’s human resources director, and the owner. They allowed a work environment so intolerable that it forced many male employees to resign.
  • The defendant retaliated against male employees who complained by taking actions that negatively affected their ability to earn sales commissions, failing to reimburse their travel expenses, and firing at least one man from his employment.

Summing It Up

Anti-harassment laws are interpreted as prohibiting sexual harassment of all kinds, regardless of whether the parties involved are of the same or opposite sexes. The legal standards and burdens of proof are the same no matter who is involved.

  • To break the law, the harassment needs to be severe or pervasive enough to change the conditions of the worker’s employment, and it must create an abusive working environment.
  • “Severe or pervasive” covers extreme, repeated conduct. Single or rare instances of bad behavior normally won’t be enough to trigger legal protection unless they are outrageous and unacceptable, such as an unwanted sexual touching or a demand for sex.
  • Harassment is usually committed by a supervisor, but the law can cover others if management is on notice of the harassment or should know about it and fails to stop it.
  • Harassment victims should report harassment internally and give their employer an opportunity to correct the situation. An employer can use as a legal defense the claim that it was not aware of the harassment so it couldn’t prevent it from continuing.

If you are the victim of workplace sexual harassment, contact our office with any questions about the law, about how it may be applied in your situation, and about the best ways to protect yourself and your legal rights.