Yes. Sexual harassment is illegal because Title VII and most state laws prohibit discrimination because of the victim’s sex, not necessarily because the harassment is sexual in content or sexually motivated. Generally, the law assumes a harasser will only harass members of one sex, since most people are either straight or homosexual. However, since sexual harassment need not be sexually motivated, it can exist even 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.
When Can there Be Sexual Harassment without a Sexual Motive?
The Supreme Court of the United States found that non-sexually motivated same-sex harassment can exist where either:
- A female is harassed in such sex-specific and derogatory terms by another woman that it is clear 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 both sexes in a mixed-sex workplace and the harasser treats his/her own sex in a discriminatory manner.
Even if you can establish same-sex harassment, you must prove the harasser’s actions were not merely tinged with offensive connotations about your sex and that they would not have occurred if you were of the opposite sex.
What if My Harasser is Bi-Sexual or an “Equal Opportunity” Harasser?
If a harasser harasses both men and women alike and does not choose victims based on their sex, such harassment does not technically violate Title VII and most state anti-discrimination laws.
Discrimination Laws and Agencies – EEOC
The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws. Generally, you must file a claim with the EEOC to sue in federal court. The filing deadline is usually 180 days after the discriminatory act, but is 300 days if you must first file a claim with a state agency. Since EEOC resources are often limited, it often issues "right to sue" letters that allows you to hire a private lawyer and pursue your claims in federal court. Most states have their own employment discrimination laws and enforcement agencies whose filing deadlines vary. The EEOC refers to such agencies as Fair Employment Practices Agencies (FEPA’s).
Do I Need a Lawyer Experienced with Same-Sex Harassment Cases?
Employment discrimination claims are complicated because procedural laws vary depending on where and when you file your claim. An harassment lawyer can help you determine if you have a same-sex harassment case, and also help you with EEOC and FEPA filing deadlines.