Homosexual Harassment

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 What Is A Hostile Work Environment?

A hostile work environment can severely impact your ability to perform your job duties. Simply put, a hostile work environment is created when anyone in the workplace engages in harassment that makes it impossible for an employee to perform their job duties.

This type of harassment generally includes unwelcome comments or conduct based on:

  • Race;
  • Color;
  • Religion;
  • Sex;
  • Gender;
  • National origin;
  • Age, when 40 or older;
  • Disability, including pregnancy;
  • Genetic information; or
  • Any other legally protected characteristics.

Hostile work environments can be created by any of the following parties:

  • A coworker;
  • A supervisor or manager;
  • Repeat clients;
  • Vendors;
  • Visitors;
  • Contractors; and/or
  • Other employment staff which have significant contact with an employee.

It is important to note that not every negative experience will cause a work environment to be considered hostile. However, if you are in a situation in which you have been subjected to offensive and unwelcome conduct that has affected the terms and conditions of your employment, you may be able to sue your employer for harassment.

A hostile work environment can manifest in a variety of ways, from sexual remarks and harassment to creating an environment of fear and intimidation. Additionally, what specifically qualifies as a hostile work environment will vary from workplace to workplace.

What Is Same Sex Harassment?

Sometimes referred to as homosexual harassment, same sex harassment can be defined in a few different ways and may be applied differently from state to state. In simple terms, same sex harassment is defined as unwelcome conduct from members of the same sex, that is perceived to be offensive, hostile, and/or abusive. For legal purposes, this conduct also must alter the conditions of the victim’s employment, as previously discussed.

Not all states recognize same sex harassment. Additionally, federal law did not always cover sexual orientation, which will be further discussed below. However, the law does prohibit discrimination based on sex; meaning, if a person who identifies as being LGBTQIA+ is treated hostilely or is subjected to offensive conduct based on their sex, and despite any preference, it may be legally actionable.

Currently, there are four legal approaches to same sex harassment claims:

  • Traditional: Arguably the most discriminatory, traditional view states that a homosexual person cannot recover because the claim is inherently rooted in the victim’s sexual preference, and is not based on sex alone;
  • Closeted View: According to closeted view, only those whose coworkers were unaware of the victim’s sexual preference will be allowed to recover. This is because this particular view states that the sexual preference could not possibly be the only basis for singling out the victim, and as such sex itself may have played a role in the discrimination and/or harassment;
  • Failure to Conform: Under failure to conform, victims who are harassed based on their failure to conform to a specific type of role associated with their gender are able to recover; and/or
  • Harasser’s View: This view completely shifts the focus from the victim to the view of the individual who is doing the harassing. Here, if a person is harassing someone based on their sex, the victim may be able to recover.

What Should I Know About Sexual Orientation And Gender Identity Discrimination?

As previously mentioned, federal law did not always cover sexual orientation. Additionally, sexual orientation discrimination and gender identity discrimination are two separate concepts, as is gender discrimination. They are defined in the following ways:

  • Sexual Orientation Discrimination: This type of discrimination refers to a person receiving differential treatment or being harassed because of the fact that they either are or are perceived to be gay, lesbian, transgender, heterosexual, bisexual, queer, intersex, etc (“LGBTQIA+”). It is important to note that they do not actually have to be LGBTQIA+ in order for the law to protect them from sexual orientation discrimination;
  • Gender Identity Discrimination: This type of discrimination specifically occurs when a person is harassed or receives differential treatment based on how they express themselves in relation to their gender. An example of this would be if they present themselves in a manner associated with a different sex, or undergo gender affirming medical care or procedures; and
  • Gender Discrimination: Gender discrimination should not be confused with gender identity discrimination. Gender discrimination occurs when a person is harassed or receives differential treatment because of their gender, or their perceived gender. This is commonly referred to as sexism. The difference between gender and gender identity discrimination is that gender identity discrimination includes gender expression.

As of June 15, 2020, the U.S. Supreme Court ruled that all three types of discrimination are considered to be illegal, and as such they are explicitly protected by the Civil Rights Act of 1964 (“Title VII”). What this means is that it is now illegal in every state for an employer to terminate a worker simply for being LGBTQIA+. Prior to this decision, only gender discrimination was recognized under Title VII.

This can involve any situation in which an employer treats that worker poorly in any aspect of their employment, including:

  • Job tasks;
  • Promotions;
  • Termination;
  • Payments; and
  • Fringe benefits.

An example of this would be how an employer may not terminate an employee for being bi-sexual. If this occurs, the employee may file a claim with the Equal Employment Opportunity Commission. The EEOC will then conduct an investigation, and the employer will either have to change their policies or comply with whatever remedy the EEOC decides will resolve the issue.

Alternatively, if the results of the EEOC investigation are not sufficient for the employee, they may proceed to bring a lawsuit against their employer under Title VII. However, they must first receive a Right to Sue letter.

What Else Should I Know About Workplace Harassment In General?

As an employee, you should inform your harasser directly that their conduct is unwelcome and must immediately stop. However, this may not always be the safe option; if your safety or wellbeing would be at risk by confronting your harasser, please proceed to reporting any hostile work environment situation to your supervisor or management. This will allow them to address the situation and attempt to prevent it from escalating.

It is important to keep records of communication that you have made to management regarding the hostile work environment, as well as to have evidence on hand should any legal action arise. The best form of communicating with management regarding a hostile work environment is by email or in writing, as the conversations will be recorded.

If you choose to inform management by phone, you should be aware that there are federal and state wiretapping laws that may limit your ability to record telephone conversation. Federal law generally permits recording telephone calls and in-person conversations so long as at least one of the parties (including yourself) consents to the recording. However, some states require that all parties to the communication consent to any recording. A local lawyer can inform you of your state’s specific wiretapping and recording laws.

If an employer was aware of a hostile work environment, but failed to further investigate, intervene, or otherwise address the issue, they may also be held liable for the actions of an employee.

Do I Need An Attorney For Help With Same Sex Harassment?

If you are experiencing same sex harassment, especially in the workplace, you should consult with a local sexual harassment lawyer as soon as possible. An experienced and local harassment attorney can inform you of your legal rights and options according to your state’s laws. Finally, an attorney will also be able to represent you in court, as needed.

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