We are all too familiar with the #MeToo movement and the countless stories that are a reminder of the continuing prevalence of sexual harassment in the workplace. The movement has done much to bring to light the pervasiveness of previously unreported claims during the decades since Title VII of the Civil Rights Act of 1964 was passed. Media reports are dominated by stories of women with claims of sexual harassment, a hostile work environment, and even retaliation after they’ve spoken out. But let’s not forget that men can also be the victims of sexual harassment in the workplace.
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While the headlines are painting men to be the bad guys, and in many cases rightfully so, #MeToo should be gender-neutral. Some men, feeling a sense of distance from #MeToo, have taken to promoting #MenToo, so everyone can feel heard. Keeping in mind that the media and many on social media are treating #MeToo reports differently when they’re initiated by a man instead of a woman, we need to make sure that culture doesn’t also permeate the workplace.
Are you prepared to respond to any sexual harassment complaint, regardless of the gender of the employee who raises it? Or the gender of the alleged harasser? You should be, so the complaining employee feels heard, the complaint is properly addressed, and you (hopefully) avoid the protracted litigation that could result.
What You Need to Know
Robert Frotten worked as a technical recruiter at INT Technologies, Inc., for 10 months. At the outset of his employment at the staffing firm, he attended a training session along with other employees, including INT’s owner, Chris Knott, the vice president (VP) of sales, and the VP of recruiting. Frotten reported directly to the VP of recruiting, who was (at the time) the wife of the VP of sales.
During the training session, employees were required to participate in an icebreaker game organized by members of the leadership team, including the HR manager. The attendees anonymously submitted secrets about themselves. A list was presented to the participants, who then had to guess which participant submitted which secret. One of the secrets was sexual in nature, and Frotten, along with other employees, found the entry inappropriate.
At a mandatory dinner later that evening, Frotten was part of a conversation in which his direct supervisor and the VP of sales made sexually explicit remarks, which we won’t repeat in this article. Frotten also alleged that he was later subjected to regular conference calls that were sexually driven or replete with offensive comments.
In mid-December, Frotten spoke with Knott’s daughter, who was also an INT manager. He had contacted her to get advice on how to raise his concerns about his managers’ inappropriate behavior to Knott. He gave very generic examples of his problems with the VP of recruiting and the VP of sales, but he didn’t mention that the problems were related to sex discrimination or a hostile work environment.
Frotten later called Knott and attempted to report his concerns about the sexual content of his communications with the VP of sales and the VP of recruiting, but Knott took over the call. INT contradicted Frotten’s version of the call, claiming he contacted Knott because he was financially stressed and Knott offered to forgive a company loan to him.
Frotten alleged that the sexually explicit calls with his supervisor continued into January. Further, he claimed that his supervisor pressed her breast against his left arm during a training session in March. He said he moved away, hoping she would get the hint that she was violating his personal space. Moreover, he claimed that as he was leaving the training session, his supervisor instructed him in a sexual tone to meet her in her hotel room the next day. Again, INT disputed Frotten’s version of the incident, asserting that the supervisor informed all employees which hotel room to report to the next day for more training.
After ending his 10-month employment at INT, Frotten sued his former employer for creating a hostile work environment and engaging in retaliation. INT asked the Arizona federal court to enter judgment on his claims in its favor before trial because (1) the alleged conduct was neither unwelcome nor sufficiently severe or pervasive to be actionable and (2) Frotten hadn’t engaged in protected activity, nor was he subjected to an adverse employment action.
Viewing the facts in the light most favorable to Frotten, as it is required to do when ruling on such a request, the court denied INT’s request for judgment in its favor, ruling that a trial would be necessary. The parties settled the case approximately one month after the court entered that ruling.
Unwelcome Conduct?
To get his hostile work environment claim to trial, Frotten was required to show (1) he was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. In defending against his claim in its pretrial briefs, INT disputed his assertion that the conduct was unwelcome. Specifically, INT argued it “is simply not credible” that he was the victim of unwelcome sexual conduct because he actively engaged in sexual comments and jokes himself.
INT presented evidence that Frotten engaged in sexual banter with his coworkers and his alleged harassers. He countered that he engaged in the inappropriate sexual banter with INT’s leadership team at the beginning of his employment in an effort to fit in. Although his allegedly mutual sexual banter was relevant to whether the conduct was unwelcome, it wasn’t dispositive, so the court considered other factors, noting that it could find the conduct unwelcome if he complained about it. Citing a dispute over whether Frotten complained about his managers’ behavior during the December call with Knott, the court found that a jury would have to decide whether the conduct was unwelcome.
Severe and Pervasive Harassment
INT also argued that Frotten wasn’t subjected to severe or pervasive conduct sufficient to establish a hostile work environment because his primary allegation involved a one-time incident with his supervisor. Again, the court disagreed.
The court noted that a single incident of sexual harassment could alter the conditions of employment if it was extremely severe. However, the court found that it didn’t have to decide if Frotten’s allegation that his supervisor rubbed her breast on his arm was extremely severe because it wasn’t an entirely isolated incident. He had also alleged sexual harassment by other members of INT’s leadership team.
The court noted the fact that his immediate supervisor and other members of leadership engaged in the allegedly unwelcome conduct could render the actions more emotionally and physically threatening than inappropriate conduct by his coworkers. Moreover, the compounding nature of a series of events could render them sufficiently severe or pervasive in the aggregate.
Takeaway
Although men can be sexually harassed in the workplace, they don’t generally speak out when it does happen. The stereotype of women as sexually harmless can cause HR to dismiss a male employee’s complaint that he is being sexually harassed by a female coworker or supervisor. But that shouldn’t happen. If your managers regard an encounter as implausible, the complaining employee could be victimized a second time. Instead, you must train your supervisors to take all sexual harassment allegations seriously, regardless of the victim’s gender.
The disputed facts make it impossible to know exactly what happened in this case. Did Frotten try to complain about his managers’ sexually explicit conduct, only to be brushed aside and told to focus on his performance and not worry about the managers with whom he was having problems? Or was his conversation with the company’s owner only about his financial stresses, as INT claimed? We will never know.
Jodi R. Bohr is a Shareholder at Gallagher & Kennedy, P.A., in Phoenix, Arizona. She is also an Editor for the Arizona Employment Law Letter and may be reached at jodi.bohr@gknet.com.