Workplace Articles By BCC
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In the ever-increasing complexities of the sexual harassment landscape, a particular permutation has come into greater view--same-gender sexual harassment. The emergence of this form is creating serious challenges of defining, managing and effectively resolving its occurrence in the workplace.
While the existence of the behavior is not a new development, the recognition of it as a legitimate issue is. However, beyond the acceptance that the behavior labeled as same-gender harassment exists, there is little consensus about much else by those who are ultimately responsible for preventing and managing it in the work environment.
So complicated are the factors which often accompany this form of conduct that the court systems, which are increasingly faced with hearing cases of this nature, vary widely on the actual definition of same-gender harassment as well as the circumstances in which it might constitute illegal behavior.
There is not agreement on whether or not employment laws intended to prevent discrimination and harassment apply to this particular form of conduct and, if so, how to interpret their application to determine employer responsibility and, in the extreme, potential liability. As a result, there are not accepted and agreed upon standards for preventing, managing and successfully resolving what remains to be a pervasive and often insidious behavior that can have serious impact on its direct recipients as well as those who are exposed to it in their work environment.
Defining the Issues
While the definition of same-gender sexual harassment is a relatively simple one, because of the issues of human sexuality that are often implicated or directly introduced in its actual occurrence, there is frequently much confusion about its meaning and, therefore, what distinguishes it as a unique form of harassment. Same-gender sexual harassment is essentially unwelcome behavior of a sexual nature that occurs between individuals of the same gender, whether it is between or among women, or between or among men.
As with other forms of sexual harassment that are explicitly prohibited by federal civil rights laws, specifically Title VII of the Civil Rights Acts of 1964 and 1991, there are two basic forms of same-gender sexual harassment: Quid Pro Quo and Hostile Work Environment. And as with other forms of sexual harassment, power dynamics are most often at its root.
Quid Pro Quo is behavior that requires submission to a sexual demand as a term or condition of employment or as the basis for receiving an employment benefit. In some instances it will take the form of adverse action or retaliation against the individual who has rejected the advance. The power relationship in quid pro quo situations is clear: by definition, the individual who engages in such conduct is in a position of authority over the job conditions of the recipient of his or her behavior.
Most often the power is positional or established by one's hierarchical status within the organization. However, some claimants have been successful in establishing a case of quid pro quo based on the perceived authority of the harasser who, regardless of title, maintains apparent influence to affect the recipient's employment, for example, by issuing job assignments or evaluating performance.
Hostile Work Environment sexual harassment is conduct which has the purpose or effect of unreasonably interfering with one's ability to perform his or her job or which creates a hostile, intimidating, or offensive work environment. In order for the behavior to be considered illegal, it must be sufficiently severe or pervasive to alter the employment conditions of its recipient. More often than not, the hostile environment is created by a pattern of behavior though, in relatively rare circumstances, a particularly egregious single occurrence has been determined to be actionable under state and/or federal laws.