According to the Equal Employment Opportunity Commission (EEOC), sexual harassment charges by men have doubled since 1992, accounting for 16 percent of the 12,696 sexual harassment charges filed in the 2009 fiscal year. And while female-male sexual harassment certainly makes up some portion of those claims, it’s evident that male-male harassment claims are also on the rise. These claims are resulting in costly settlements to resolve alleged behaviors that some employers may not even believe are illegal.
Cheesecake Factory Has Big Portions, Big Settlement
Just one example of the rising number of male-male sexual harassment claims is the 2008 case of EEOC v. Cheesecake Factory, Inc. Since the first EEOC settlement for male-male harassment was reached in August 1999 (for a hefty $1.9 million), the EEOC has filed similar suits in recent years against Carmike Cinemas, Inc., Haydon Brothers Contracting, and Fleming’s Prime Steak House. Just this past December, a male-male harassment suit was filed against the upscale New York restaurant Sparks Steak House.
In the Cheesecake Factory case, six male employees alleged that they were subjected to repeated sexual harassment by a group of male kitchen workers at a Phoenix restaurant. The employees who filed suit with the EEOC claimed they were subjected to egregious sexually abusive behavior, including sexually charged remarks, genital groping, and even simulated rape. The EEOC alleged that managers had witnessed the acts, which included employees being dragged forcibly into the walk-in refrigerator, but had made no efforts to curtail the behavior. Eventually, one employee called the police for assistance.
The company denied the allegations, settling the suit this past November for $345,000 and agreeing to specifically provide sexual harassment training to employees and managers.
Oncale Opened Doors for Male-Male Claims
Before 1998, many federal courts held that a male couldn’t file a sexual harassment claim against another male. However, the U.S. Supreme Court’s ruling in Oncale v. Sundowner Offshore Services, Inc., held that same-sex harassment could be a violation of Title VII of the Civil Rights Act of 1964. In the case, a male employee working on an oil platform was first verbally and then sexually assaulted by three other male coworkers, one of whom was a supervisor.
The key question in the case was whether the employee had been harassed “because of” his sex, and the court identified three avenues through which same-sex harassment may occur. Specifically, male-male sexual harassment may be found if the alleged harassment:
1. is a result of sexual desire;
2. is motivated by general hostility toward fellow men; or
3. occurs as a result of fellow men being treated differently than women in the workplace.
Same-sex harassment may also occur if an employee is mistreated because of perceived nonconformance with gender stereotypes, e.g., male employees bullying other male employees they believe are “effeminate.”
Note that sexual desire is only one of three possible causes for the harassment. As a result, the sexual orientation of the parties isn’t relevant to whether the event is sexual harassment. The Oncale case set the precedent for same-sex harassment as well as sexual harassment without motivation of sexual desire. In many sexual harassment cases, the aggressors’ behavior is a form of intimidation rather than exhibition of sexual attraction. In fact, in the Cheesecake Factory case, for example, no allegations were made that the harassers were acting out of sexual desire.
Bottom Line
You have a responsibility to ensure that your workplace is free of sexual harassment. Title VII requires supervisors and employers to act promptly to investigate and remedy sexual harassment once they become aware of it. Failure to do so can lead to employer liability. Thus, you should take harassment complaints seriously — no matter who makes them. If a male employee complains about the actions of another male employee, you should investigate and respond in the same manner you would respond to a female’s complaint about a male or vice versa.
You also should review your harassment policies to ensure that they apply to all actions “based on sex,” including actions between men. Your preventive program should include an explicit policy against sexual harassment that’s clearly and regularly communicated to your employees and effectively implemented as well as a specific procedure for resolving sexual harassment complaints. Typically, your policy should appear in your employee handbook, which employees must read before beginning their employment, and the policy should also be posted in a conspicuous place in your workplace. Finally, your policy should include an antiretaliation provision assuring employees who make good-faith complaints that they won’t be retaliated against.