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Same Sex Harassment

When most people hear the words “sexual harassment” they think of situations involving a man and a woman, Clarence Thomas and Anita Hill often come to mind, but sexual harassment can involve harassment where both the aggressor and the victim are the same gender. The United States Supreme Court has recognized “same-sex harassment” since 1998, but many people are unaware of the broad-array of conduct that can fall under the ambit of “sexual harassment.”

Sexual harassment is unwelcome conduct of a sexual or gender-based nature. It can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment. Sexual harassment does not have to be based on sexual desire or attraction. It can also be based on comments or conduct having to do with a person’s gender. Sexual harassment violates Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, and the federal government.

In 1998, the United States Supreme Court first recognized same-sex harassment in Oncale v. Sundowner Offshore Services. In that case, a man working on an eight-man oil rig claimed he was subjected to sexually humiliating actions against him by his co-workers including sexual assault, battery, touching, and threats of rape. No action was taken when he complained to his supervisors. The Supreme Court held that a man could be discriminated against by members of the same sex under Title VII.

The issue of sexual orientation is often intermingled with the subject of same-sex harassment. Currently, federal law does not protect an individual who is discriminated against or harassed because of his or her sexual orientation. Even so, an increasing number of local and state governments protect homosexuals from discrimination and harassment. Also, it can be difficult to differentiate between harassment based on gender and harassment based on sexual orientation, so a general ban on harassing behavior is advised.

What should employers do to protect themselves? First, employers should make sure to educate and train employees about current standards for sexual harassment, which include harassing behavior from and towards individuals of the same sex. Employers should completely prohibit inappropriate behavior, which may entail reviewing your employee handbook and making revisions, if necessary.

Employers should also have established procedures to manage issues when they arise. This should include designating a specific department or position, such as a Human Resources Director, to handle complaints. In addition, employees should have a choice of people within that department to contact. In some cases, employers may want outside independent counsel to conduct the investigation, not only to ensure the investigation will be conducted with attention to the legally significant facts, but also so that the information obtained may be protected from disclosure by the attorney-client privilege and the work product doctrine. A third-party investigator may also be a good idea where the alleged harasser is a high-level executive, so that there is a reduced risk that the accuser will argue that the investigation was flawed or biased.

The designated officer (or third-party) should promptly, thoroughly, and discreetly investigate any allegations of sexual harassment. At the end of the inquiry, steps should be taken that are reasonably calculated to end the harassment. In remedying the situation, employers should be careful to avoid taking action that could be deemed to be retaliation by the person who complained about harassing behavior.

Some say that harder economic times foster an environment of increased sexual harassment. They speculate that harassment increases when those in power feel threatened, which sometimes leads to harassing behavior. Others speculate that thinner economic times lead to training programs on sexual harassment being cut from tight budgets. Whatever the reason is, employers have more reason than ever to address issues of sexual harassment with employees and supervisors so these types of behaviors do not create problems in the workplace.