When we talk about sexual harassment in the workplace, we often talk in terms of men harassing women. It may be the example that first comes to your mind when we say "sexual harassment," and it is the example we use most often when discussing the topic. But does that mean the law prohibits only men from sexually harassing women? Not at all. In fact, the law has been interpreted to prohibit sexual harassment by men and women against people of the same and opposite gender.
In today’s posting we’ll talk about how the law on sexual harassment has been applied to situations where both the harasser and victim are the same gender. If you have questions about your own sexual harassment case, please contact Eisenberg & Baum. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help you understand your sexual harassment case no matter where you are.
We’ve noted before that many federal, state and local laws prohibit sexual harassment in the workplace on the grounds that such harassment is considered gender discrimination. The federal law that has been interpreted to prohibit sexual harassment in the workplace is Title VII of the 1964 Civil Rights Act. Though we often cite this law as prohibiting sexual harassment, the words “sexual harassment” don’t actually appear in the text of the law. Instead, Title VII states more broadly, “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex… .” The concept of sexual harassment as a form of sex discrimination developed over time after the enactment of Title VII as more women entered the workplace and the women’s liberation movement gained political and legal strength. The first United States Supreme Court decision acknowledging sexual harassment as a legal cause of action under Title VII came in 1986 with the case of Meritor Savings Bank v. Vinson. That case presented what would now be seen as a classic example of sexual harassment in which a female employee was coerced into participating in sexual acts by her male boss.
Over ten years after the Supreme Court’s decision in Meritor, the Supreme Court considered the question of whether Title VII could apply when the harasser and victim are the same gender. In that case, Oncale v. Sundowner Offshore Services, Inc., a male worker on an offshore oil platform complained about the harassing conduct of several male co-workers who allegedly engaged in both verbal and physical sexual conduct with him. The Court noted that Title VII protects both men and women from discrimination based on their sex, and held that sexual harassment by someone of the same gender can be just as illegal as harassment by a member of the opposite sex.
Following the opinion in Oncale, the key issue in same-sex sexual harassment cases is whether the harassment occurred “because of” the victim’s gender. If for example, the victim can show that the harasser harassed only members of their own gender and not the opposite gender, a court could infer that the harassment was motivated by the victim’s gender. If, on the other hand, the evidence shows that the harasser treated both men and women in the workplace the same, equally harassing both, the victim could have difficulty showing that they were harassed because of their particular sex.
Since the Oncale decision, there have been a number of sexual harassment cases based on same-sex harassment. In March of this year, the EEOC, the federal agency in charge of enforcing Title VII, announced it filed a lawsuit against a wireless retailer, ABC Phones of North Carolina, Inc., based on same-sex sexual harassment. The EEOC alleges that a female sales associate with the company was sexually harassed by a female colleague. The victim reported the conduct, which included both inappropriate comments and touching, to her management, but the conduct continued. The EEOC is seeking damages on the victim’s behalf, and noted in a press release that “‘[s]exual harassment is illegal, regardless of whether the harasser is female or male, or the same or opposite gender as the victim.’”
In 2014, the EEOC reached a settlement with Wells Fargo Bank in a similar case. There, several female bank tellers complained that a female manager and a female co-worker had harassed them both verbally and physically. Among other things, the harassers in that case allegedly made sexually explicit comments and gestures to the female tellers, suggested they wear provocative clothing to work, and inappropriately touched them. Again, the victims in the case reported the harassment to their employer, but the harassment did not stop. Wells Fargo settled the case with the EEOC, agreeing to pay the victims $290,000 in damages and to take preventative steps to avoid similar situations in the future.
Sexual harassment can be committed by almost anyone in the workplace, male or female, manager, co-worker or customer. Women can sexually harass other women and men can sexually harass other men. If you believe you are being sexually harassed at work, no matter who is harassing you, we encourage you to contact an attorney. The attorneys at Eisenberg & Baum have years of experience handling a wide variety of sexual harassment cases and are ready to help you. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.