While male-female sexual harassment cases still predominate, same-sex and other forms of harassment are a growing trend. And, often, there’s no sex involved.
Remember that 1980 film classic, 9 to 5? A slimy, leering boss (played by Dabney Coleman) constantly hits on his secretary (Dolly Parton), tossing double-entendres when he’s not actually chasing her around the desk – or offering her job advancement in exchange for her favors.
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While that depiction might still work for Hollywood, it doesn’t in reality. Recent data from the Equal Employment Opportunity Commission and the courts show entirely new forms of sexual harassment are being defined.
One sign is a record number of cases of male-on-male harassment. In 2009, some 16 percent of cases were filed by men, up almost half again from the number in the mid-1990s.
Not Manly Enough
While some cases involved gay men soliciting others out of sexual desire, a great number involved heterosexual men harassing other heterosexual men. … for not being “manly” enough.
Legal action against this form of discrimination goes back to a 1998 Supreme Court case called Oncale v. Sundowner Offshore Services, a company which operated offshore oil drilling rigs.
In this case, the victim was a slightly built man, subjected to a barrage of sexual taunts, gestures, and other affronts by his co-workers on a rig in the Gulf of Mexico. All parties were heterosexual. The victim was apparently harassed simply because he didn’t fit the stereotype his peers had of what he should be like.
Those defending the case asked for its dismissal because there was no harassment of the opposite sex, and no sexual desire involved, and also because it’s common in same-sex situations to engage in a certain amount of “locker room antics” or “horseplay.”
The Court didn’t buy it. It noted that harassers could be the same sex as their victims, and it removed any notion that sexual desire had to be the motivation.
“The prohibition of harassment on the basis of sex,” said Justice Antonin Scalia, in writing the Court’s opinion, “requires neither asexuality nor androgyny in the workplace. It forbids only behavior so objectively offensive as to alter the conditions of the victim’s employment.”
Not Feminine Enough
This type of situation has not been limited to male victims. In an earlier case called Price Waterhouse v. Hopkins, a female senior manager at the accounting giant was denied promotion to partner. She was, according to the Supreme Court opinion, advised to take “a course at charm school” and to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
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The Supreme Court noted that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”
How should employers guard against this wider definition of sexual harassment? The Braun Consulting firm offers the following suggestions:
- If it does not already do so, revise your sexual harassment policy to prohibit same-sex harassment.
- Train your managers and supervisors on the widened policy. In particular, have them guard against “horseplay” or “locker room antics.” There’s a fine line that’s easily crossed, with potentially devastating legal consequences.
- Investigate any allegations of sexual harassment vigorously, without regard to the gender of the parties involved. Same-sex situations should be handled in exactly the same manner as alleged harassment of the opposite sex.
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