Same-Sex Harassment in Employment

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 What Is Sexual Harassment?

In legal terms, sexual harassment refers to unwelcome sexual advances, requests or demands for sexual favors, and other verbal or physical harassment of a sexual nature. There are two types of workplace sexual harassment, hostile work environment sexual harassment and quid pro quo (or, something for something) sexual harassment.

According to the federal law Title VII of the CIvil Rights Act of 1964, as well as many state laws, hostile work environments and quid pro quo sexual harassment are both illegal. Hostile work environment harassment occurs when an employee is subjected to conduct such as:

  • Demeaning jokes;
  • Slurs;
  • Lewd remarks; and/or
  • Threats.

The unwelcome conduct must be sufficiently severe or pervasive to constitute a hostile work environment, meaning that it must change the terms, conditions, and/or expectations of a comfortable workplace for an employee. The employer may assert a defense, but they will need to prove that they took steps to both correct and prevent harassment. Additionally, they must prove that the victim somehow failed to make use of these measures.

Quid pro quo sexual harassment occurs when a supervisor or employer demands a sexual relationship, and/or sexual favors. If the employee refuses to submit to these demands, the employer or supervisor threatens to or actually takes a negative job action, such as a demotion or termination. However, if the employee submits to the demands, they are promised or receive a raise, promotion, or similar benefit.

A victim can sue the employer for quid pro quo conduct sexual harassment, regardless of whether they submitted to the demand. In order to be successful the plaintiff must prove that, because of their gender, they were subject to an unwelcome demand or conduct that was sexual in nature.

That must also prove that specific job benefits were contingent upon submitting to the harasser’s demands, or that employment decisions were based on acceptance or rejection of the demands. Additionally, the victim must demonstrate that harm actually occurred, and that the conduct of the harasser played a substantial part in causing that harm.

An employer may escape liability with a defense which states that they exercised due care to both correct and prevent harassment. The employer must then prove that the plaintiff failed to utilize the provided measures.

What Is Same Sex Harassment In Employment?

Regardless of the relationship between the parties or how it is classified, people of any gender can experience sexual harassment, especially in employment. Sexual harassment, including harassment in employment, can happen between parties of the same sex or of a different sex as well. The determining factor in identifying sexual harassment is the nature of the offending party or parties’ behavior.

According to the Equal Employment Opportunity Commission (“EEOC”), sexual harassment is a form of sex discrimination involving:

  • Unwelcome sexual advances;
  • Demands for sexual favors; and
  • Various other verbal and/or physical actions that are of a sexual nature, and are all considered to be illegal.

Additionally, sexual harassment may refer to any offensive comments or remarks that are made about a person’s gender. However, this type of harassment is more commonly associated with gender discrimination. When sexual harassment occurs in a work setting, it is also considered to be employment discrimination. The offensive conduct can take place between a supervisor and an employee, or between two colleagues.

Sexual harassment is illegal because Title VII, as well as most state laws, prohibit discrimination because of the victim’s sex. It is not necessarily because the harassment is sexual in content or sexually motivated. Generally speaking, the law assumes that a harasser will only harass members of one sex, as it is assumed that most people are either straight or homosexual.

However, because sexual harassment need not be sexually motivated, it can exist where the harasser is straight and the same sex as the victim, as long as the harasser does so because of the victim’s sex.

Can There Be Sexual Harassment Without A Sexual Motive?

The Supreme Court of the United States has found that non-sexually motivated same-sex harassment can exist where either:

  • A person who identifies as female is harassed in such sex-specific and derogatory terms, by another woman, that it is obvious that the harasser is motivated by a general hostility toward the presence of other women in the workplace; or
  • The victim has direct comparative evidence of the harasser’s treatment of different sexes in a mixed-sex workplace and the harasser treats their own sex in a discriminatory manner.

It is imperative to note that even if you can establish same-sex harassment, you must prove that the harasser’s actions were did not simply suggestive offensive connotations about your sex, but that they would not have occurred if you were of a different sex.

What Are Some Laws That Protect Employees From Sexual Harassment In Employment In General?

The EEOC is largely responsible for enforcing any federal law associated with sexual discrimination and harassment. As an example, the previously mentioned Title VII of the Civil Rights Act of 1964 is one of the main federal laws that protects people from employment discrimination, including sexual harassment. The EEOC helps to ensure that employers follow the standards set by Title VII, and will hold them accountable when they are in violation of any set standards.

Generally speaking, you must file a claim with the EEOC in order to sue in federal court. The filing deadline is generally 180 days after the discriminatory act, but is extended to 300 days if you must first file a claim with your state agency. Because EEOC resources are frequently limited, they often issue “right to sue” letters that allow you to hire a private lawyer and pursue your claims in federal court. Keep in mind that most states have their own employment discrimination laws, as well as enforcement agencies, whose filing deadlines vary. The EEOC refers to these agencies as Fair Employment Practices Agencies (“FEPA’s”).

However, it is important to note that Title VII only applies to employment agencies, unions, and companies who have 15 or more employees. As such, if the business does not meet one of these criteria, a harassment victim will need to utilize state laws and/or company policies for protection. When there does not seem to be a federal or state law directly associated with a claim, the employee should review their employment contract, an employment handbook, and/or an employer’s company policies.

Each state maintains some version of a statute that prohibits sexual harassment conduct in the workplace. While some states have statutes that explicitly state that it is illegal, other states have it listed as a category under their discrimination laws.

In response to the #MeToo era, some states such as Connecticut, Hawaii, and Florida have recently started drafting legislation in order to prevent non-disclosure agreements (or “NDAs”) from protecting employers who are in violation of sexual harassment laws.

While sexual harassment conduct in the workplace has always been illegal, and employers should have always abided by the relevant laws, the #MeToo movement focused much more attention on sexual harassment offenses. As such, it has become a staple of good business practice to include explicit rules in company documents that prohibit such behavior, and provide a clear and safe reporting protocol for victims of same sex harassment in employment.

Do I Need An Attorney For Same Sex Harassment In Employment?

If you are experiencing same sex harassment in employment, you should consult with an experienced and local sexual harassment lawyer as soon as possible.

An attorney can provide you with the most relevant advice regarding your legal rights and options under your state’s specific employment and harassment laws. Additionally, your harassment attorney will also be able to represent you in court, as needed.

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