With the announcement of Gretchen Carlson’s (and, subsequently, several other female employees’) complaints about Fox News head Roger Ailes and his ensuing resignation, sexual harassment has recently been in the news. Although Ailes’ conduct somehow slipped under Fox’s radar, most other employers know that employee complaints about sexual harassment are a serious matter that must be promptly investigated. And most, if not all, of you have a sexual harassment policy that includes strong language assuring employees that you will not tolerate sexual harassment, you will act quickly to eliminate inappropriate conduct, and anyone found to have violated your sexual harassment policy will be subject to prompt discipline. However, having such a policy does little good if stereotypes about what sexual harassment “looks like” stop employees and supervisors from recognizing—or reporting—it. 
Modern perceptions of sexual harassment generally bring to mind a female victim and a male perpetrator. However, like Jennifer Aniston in “Horrible Bosses,” a sexual harasser can be female, too. And as the recent lawsuit against Elton John shows, sexual harassment can happen between people of the same gender, regardless of the harasser’s or the victim’s sexual orientation.
Women as harassers
In March 2014, a Texas constable was awarded $567,000 in back pay and damages after he successfully sued his female boss for sexually harassing him. The constable alleged that his boss asked him to touch her breasts, placed his hand on her chest, placed her shirt over his head, and pretended to give him lap dances. He was fired after the boss discovered him attempting to record her harassing behavior. When asked, the victim stated that he believed his boss’s actions were about power and sex.
Although that case may seem like an outlier, data show that female aggressors may actually be more common than previously thought. A recent study of data collected by the Australian Equal Opportunity Commission, that country’s equivalent to our Equal Employment Opportunity Commission (EEOC), shows that more than one in 10 sexual harassment complaints were lodged by men. Overall, women were accused of harassing men in about 5% of cases.
What leads women to sexually harass others? Research suggests that in certain contexts, women are encouraged to stand in as “honorary men.” Women will often adopt sexualized banter and potentially harassing behavior to fit in with the “dominant male” gender culture. Hence, the victim in the Texas case could be correct about the motivation behind the harassing conduct: His female boss, in a male-dominated field, may have adopted sexualized language and behavior in an attempt to maintain power and fit in with a male-dominated culture.
Regardless of why women harass, supervisors and managers must be trained to recognize that an allegation of sexual harassment involving a female aggressor and a male victim is just as viable, and carries the same potential liability, as more stereotypical victim-aggressor pairings.
Same-sex harassers
In March 2016, an off-duty police officer filed a lawsuit against Elton John alleging that the singer groped him while he was working as John’s private security. The officer also alleged that the singer made sexually suggestive comments to him. Obviously, any liability remains to be seen, but the case is illustrative of a key point: Sexual harassment claims aren’t limited to only heterosexual employees but can also occur between two people of the same sex.
Closer to home, a patrolman from the Reading Police Department filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) claiming he was subjected to homophobic names and a sexual assault by a lieutenant. The patrolman isn’t gay, nor was he perceived to be gay by his coworkers, but MCAD didn’t find that fatal to his claim.
The lieutenant’s conduct apparently began as lighthearted banter, but it progressed to homophobic slurs that were conveyed in a hostile, not playful, manner and resulted in an intimidating, hostile, and sexually offensive work environment. The patrolman’s case went to a public hearing before an MCAD hearing officer, and the hearing officer found that not only were the comments and name-calling sufficient to support a hostile work environment claim, but the lieutenant had also slapped the patrolman’s genitals, which was sufficiently severe to support an independent sexual harassment claim.
MCAD awarded the patrolman $7,000 in emotional distress damages, along with 12% interest from the date he filed the charge, and the town must conduct antiharassment training to ensure that its employees understand the prohibition against sexual harassment. MCAD v. Town of Reading (Dckt. No. 10-BEM-00986, 2016).
The study from Australia referenced above shows that men accused other men of sexual harassment 11% of the time. Female-on-female harassment is, shockingly, even more common, accounting for about 16% of cases. Interestingly, the majority of same-sex harassment complaints involved only sexually harassing comments rather than the type of physical contact seen in male-aggressor and female-victim harassment.
Research indicates that same-sex harassment also seems to stem from a need to activate power in the harasser. In cases of female-on-female harassment, nine in 10 reports were made by subordinates against their supervisors, strongly supporting the idea that harassment is seen as a source of power. Researchers noted that the men who are more at risk of victimization by other men are gay, perceived to be gay, or display feminine traits. That suggests that male-on-male harassment is a form of expressing power, with vulnerable male victims possibly becoming victims of convenience when vulnerable women aren’t accessible.
Takeaways
First, all employers must take any reports of sexual harassment seriously, even if the harassment being alleged doesn’t fit stereotypical expectations. You must conduct a prompt investigation and be prepared to take appropriate action based on the result of your investigation. Don’t be tricked into thinking that atypical sexual harassment is any less damaging to workplace morale or any less likely to result in liability than stereotypical harassment.
Second, be sure to include a sexual harassment policy in your handbook. In Massachusetts, it’s mandatory to include an antiharassment policy in your company handbook and distribute it to all employees annually. We recommend getting a signed acknowledgment from each employee who receives the policy in your annual distribution. The acknowledgment form should say that the employee has read the policy, agrees to abide by it, and agrees to report any conduct that he or she believes violates the conduct. That helps you ensure that you are informed about misconduct when it occurs rather than after the fact, and it also helps you ensure that employees can’t claim they didn’t know how to report a problem. Tie your annual distribution of the policy to something that you will automatically do each year, such as distributing W-2 forms, to be sure you don’t inadvertently skip a year.
Your antiharassment policy should outline what constitutes sexual harassment, including situations involving same-sex harassment and female harassers, and provide a procedure through which employees can report any misconduct to a supervisor, as well as file a complaint with state and federal agencies. In addition, because same-sex harassment may consist of only verbally harassing behavior, the policy should emphasize that sexual harassment can be entirely verbal and no physical contact is required.
Finally, regularly train your supervisors how to handle reports of sexual harassment and explain the steps needed to properly investigate those reports. Be sure that supervisors understand that their behavior could subject them to individual liability if they engage in conduct that violates your policy. If you have concerns about sexual harassment in the 
workplace, check with your employment counsel for guidance.
Stefanie M. Renaud is an associate at the firm of Skoler, Abbott & Presser, P.C. She may be contacted at srenaud@skoler-abbott.com.