A boss corners a female subordinate in the copy room and threatens to demote her unless she goes to dinner with him; a group of male employees makes off-color remarks to a female co-worker about her appearance; a male employee asks his female co-worker about her sexual activities. Stereotypical depictions of sexual harassment such as these are prevalent in today’s movies, TV shows and even corporate harassment training videos.
Although most sexual harassment claims involve male-on-female harassment, allegations of male-on-male harassment—and even female-on-male harassment—are on the rise. Employers should not only be aware of this trend, but also understand how to identify all forms of sexual harassment and adjust their harassment policies accordingly.
Since 1990, the percentage of sexual harassment claims filed by men has doubled to more than 16 percent, according to the Equal Employment Opportunity Commission. This percentage has continued to rise even as the overall number of sexual harassment complaints has declined. From 2006 to 2009, sexual harassment claims filed by men jumped to 16.4 percent from 15.4 percent of all sexual harassment claims. Last year, the percentage of sexual harassment lawsuits filed by the EEOC filed on behalf of male plaintiffs reached 14 percent, marking an all-time high.
Dana Mattioli of The Wall Street Journal recently observed that the spike in male sexual harassment claims coincides with a recession that has hit men harder than women. From September 2008 to January 2010, 4.4 million men lost their jobs, whereas only 2.3 million women became unemployed during this same period. According to Mattioli, the share of sexual harassment claims filed by men increased more in some states with higher-than-average unemployment rates. Whether this trend is the result of current economic conditions or is a function of higher rates of harassment against males is unclear. It may also be the case that men today are simply more comfortable coming forward with sexual harassment claims than they’ve been in the past. At any rate, there can be no doubt that more men are filing sexual harassment claims today than ever before.
Recognizing harassment against males
Male-on-male harassment commonly involves horseplay, locker-room talk and banter. In fact, it is not uncommon for a male victim of harassment to deny his harasser had any sexual interest in him. While male-on-male harassment may involve different types of conduct than traditional male-on-female harassment, what constitutes sexual harassment in the male-on-male setting is generally determined by the same standard as in the male-on-female setting. Specifically, the harassment must be “severe or pervasive” and based on sex. Generic workplace misconduct that is not sexual in nature is not unlawful.
The “based on sex” component is hard to define, particularly in the male-on-male context, and varies somewhat from court to court. The U.S. Supreme Court ruled in Oncale v. Sundowner Offshore Services that allegations of same-sex sexual harassment require the plaintiff to establish that “the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.”
To meet this standard, a plaintiff may establish discrimination by showing:
• The alleged harasser made “explicit or implicit proposals of sexual activity” and was homosexual;
• The alleged harasser was “motivated by general hostility to the presence of members of the same sex in the workplace”; or
• The alleged harasser treated men and women differently in a mixed-sex workplace.
In addition to being based on sex, the alleged harassment must be severe or pervasive. There are thousands of court cases holding that misconduct, even if it occurred as alleged, did not rise to the level of unlawful sexual harassment.
A Texas court recently held in City of San Antonio v. Cancel that a male employee failed to show sufficiently severe or pervasive conduct to support his claim, despite his allegation that a high-level male supervisor approached him and took him to the supervisor’s office, repeatedly asked him to take off all of his clothes, told him he knew people in modeling and that the plaintiff had modeling potential, and had the plaintiff lift up his shirt. The plaintiff further alleged that during their meeting, the supervisor “kept messing with his pants area,” and tried to give the plaintiff his phone number when he left.
In holding that the plaintiff failed to establish a hostile environment claim, the Texas court observed that “[a]ll of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”
There are far fewer court cases holding that conduct could be classified as unlawful sexual harassment. And typically, the holding is only that a jury has to decide the issue. In other words, rather than ruling that conduct does in fact constitute unlawful harassment, courts say conduct could constitute unlawful harassment and the issue must be submitted to a jury.
For example, the 9th U.S. Circuit Court of Appeals held in Rene v. MGM Grand Hotel that allegations by a homosexual male former employee that he was repeatedly grabbed in the crotch and poked in his anus by male supervisors and co-workers were sufficient to warrant a jury trial. Earlier this year, a Pennsylvania court, ruling in Cragle v. Werner Enterprises, denied an employer’s motion for summary judgment in the case of two male trucking company employees who alleged their male supervisor touched them on almost a daily basis, twisted nipples, jammed heads into his crotch, and suggested that one of the plaintiffs crawl underneath his desk on several occasions.
Elsewhere, a federal court in Illinois court recently denied an employer’s summary judgment motion in a male-on-male harassment case, Benitez et al v. American Standard Circuits, brought by two plaintiffs. One plaintiff alleged several instances of direct contact with an intimate body part, the most severe of which involved forced oral sex. The court observed in this case that even though the plaintiff alleged only a few incidents of unwanted touching and requests for sex, such incidents—and perhaps the forced oral sex alone—were severe enough to constitute a hostile work environment. The other plaintiff alleged less severe conduct, but it occurred more frequently, claiming that the harasser groped his genitals on a few occasions and attempted to grope him two or three times per week for the past eight years. The court rejected the employer’s claim that such incidents were “isolated and innocuous.”
Addressing male harassment
While most companies provide some form of harassment training, rarely does such training specifically address male-on-male harassment. Employers must move beyond stereotypical notions of sexual harassment and help their employees understand and recognize how harassment can manifest itself outside the traditional male-on-female setting. Employers should place particular emphasis on how seemingly innocent locker-room behavior and horseplay can cross the line and become harassment. By helping employees rethink the definition of sexual harassment, employers improve the likelihood of a harassment-free workplace. Well-trained employees will not only avoid such conduct, but are also more likely to recognize and report it when they see it happening around them.
Employers should likewise consider overhauling their sexual harassment policies, if necessary, by broadening the definition of harassment to include female-on-male and male-on-male scenarios. Including specific examples of male harassment in the policy may be particularly helpful in ensuring that employees understand and recognize how males may experience harassment. Employers also may consider tightening restrictions on horseplay and other locker-room behavior in the workplace. Employees must understand the line between good-natured joking and unacceptable harassing behavior, as well as the consequences—sometimes severe—for crossing that line.
Finally, employers may need to rethink their mechanism for reporting harassment. Men may process and react to harassment differently than women. While more men are filing sexual harassment complaints today than ever before, many men may be reluctant to come forward based on their fear of being labeled feminine, homosexual or oversensitive. Employers should be cognizant of the unique challenges men face in reporting harassment and examine ways to make male employees more likely to come forward in the event they are harassed.
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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.