Workplace Articles By BCC
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.
Homophobia as an Obstacle
As with any other complaint regarding workplace behavior, each situation must be evaluated on a case-by-case basis accounting for various factors, including the nature, frequency and impact of the conduct, to make a determination of whether or not a violation has occurred. Despite the increased attention that has been paid to sexual harassment in general, there is a particular reality that has remained constant throughout the years the issue has been studied: the vast majority of recipients of sexual harassment hesitate to either confront the behavior directly or complain about it to those in positions of authority to take action.
The list of reasons accounting for the failure to speak up includes many, fear of retaliation being the most common. In addition, there is often a concern that the complaint will not be treated seriously or that insufficient action, if any, will be taken.
In same-gender sexual harassment situations there is the additional concern that issues of sexual orientation will become the focus of the inquiry. Heterosexual recipients of same-gender sexual harassment often express the fear that their sexual orientation will be questioned simply because the perpetrator is of their same gender and, consequently, they are often reluctant to come forward with a complaint.
On the other hand, the same apprehension exists with many gay individuals who become the target of this behavior. For those who are closeted, the fear of disclosure can create an insurmountable obstacle to surfacing the harassment issue and, as a result, these individuals become doubly victimized in the process. Unfortunately, these fears are often grounded in the reality that many employers confuse the issues and mishandle the situation. These phenomena are the direct manifestations of the homophobia so pervasive in our culture.
In same-gender quid pro quo harassment situations, it is often assumed the individual making the sexual demand must be homosexual because his or her intended recipient is of the same gender. However, in evaluating alleged same-gender sexual harassment, what must ultimately be determined is the occurrence and nature of the behavior as opposed to the sexual orientation of either the perpetrator or the recipient. Therefore, same-gender quid pro quo can be engaged in by a man of any sexual orientation toward a man of any sexual orientation and, likewise, for women.
The perception that same-gender sexual harassment always involves a gay predator making unwanted sexual advances toward another person who is gay or perceived to be, or toward an unsuspecting heterosexual, is a myth. This can and does happen, but represents only one scenario.
As with other forms of sexual harassment, there is an increasing frequency of claims of same-gender harassment which falls into the hostile work environment category. And as with quid pro quo same-gender harassment, there is a pervasive misperception that sexual orientation is a critical, if not the determining factor. While a sexually hostile work environment can be created by homosexual men or women toward heterosexual members of their same gender, the reverse is also true.
There has been a growing number of complaints received by employers in which the offensive conduct, ranging from repeated sexual comments to the extreme of sexually assaultive behavior, is perpetrated by straight employees toward a gay coworker of the same gender. It is not uncommon in such situations for the recipient to simultaneously be the victim of harassment based on sexual orientation, equally inappropriate for a work environment, though seldom prohibited explicitly by company policies and even more rarely by law.
Contradictory Conclusions
The differing standards applied to the evaluation of same-gender sexual harassment situations are no more evident than in the various court systems, where rulings in relation to similar evidence are often contradictory. A brief review of some historical judgments will illustrate this point.
Same-gender sexual harassment cases have been heard in the courts for several years. In 1981, in one of the first cases of same-gender sexual harassment, the court found the employer to be in violation of Title VII of the 1964 Civil Rights Act. In Wright v. Methodist Youth Services [1] , the male plaintiff was terminated for rejecting the sexual advances of his male supervisor. Using a common standard that recognizes sexual harassment as a form of discrimination, the court reasoned that a similarly situated woman would not have had sexual advances made toward her.
More recently, various circuit court rulings have produced a range of conflicting opinions. In 1993, the California Court of Appeals, which is part of the Ninth Circuit, ruled that harassment by an individual of one gender directed toward another of the same gender is prohibited. In Mogilefsky v. Superior Court [2] , the court held that the California Fair Employment and Housing Act protects everyone from sexual harassment and from discrimination because of sex.
Although the statute does not specifically state that it prohibits "same gender" sexual harassment, "common usage indicates that in the absence of a modifying adjective the Legislature intended to prohibit sexual harassment in all cases." In this case, because the executive's alleged conduct toward his male subordinate was sexual in nature and unwelcome, it was determined to be illegal regardless of the victim's gender. Further, the court rejected the defendant's claim that same-gender sexual harassment cases require an inquiry into the sexual orientation of the parties.
In the year following the Mogilefsky decision, an opposite ruling was made in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi. In Garcia v. Elf Atochem [3], a federal appellate court ruled that same-gender harassment is never actionable under Title VII. This opinion was supported the following year when the U.S. District Court for the District of Nevada held that same-gender sexual harassment is not legally recognized under Title VII in the absence of evidence that employees were humiliated or ridiculed. In Fox v. Sierra Development Company (1995) [4], a group of employees were unsuccessful in their hostile work environment claim against their supervisor who wrote about, drew, and discussed explicit homosexual acts on the job.
Despite the fact that opinions regarding behavior which allegedly creates a hostile work environment vary widely, there tends to be more agreement with quid pro quo cases. Also in 1995, in Prescott v. Independent Life and Accident Insurance Company [5], a male employee claimed he was being sexually harassed by his supervisor who threatened that the employee would pay with his job if he failed to cooperate. The employee was fired two months following the threat. The district court found the employer strictly liable under Title VII for the supervisor's actions.
Discriminatory Standards
The tendency toward rulings of liability for quid pro quo often reflect a bias and, arguably, a different standard when the perpetrator is gay, a prejudice which is often present in hostile work environment claims as well. In Terry Yeary v. Goodwill Industries [6] , a case in which Yeary's gay supervisor made sexual advances toward him, the Sixth Circuit ruled that homosexual advances were definitely actionable, although heterosexual same-gender situations might violate Title VII (emphasis added).
The Fourth Circuit, which governs the central East Coast, reached contradictory rulings within a ten-month period in 1996. In each of these cases, the sexual orientation of the perpetrator was different. In one case, Mark McWilliams [7] , a mentally disabled mechanic, was subjected to ongoing harassment, including assaultive behavior, by fellow heterosexual coworkers. According to the court record, on one occasion, "...a coworker placed his finger in McWilliams' mouth to simulate an oral sexual act. During another of these incidents, a coworker and another placed a broomstick to McWilliams' anus while a third exposed his genitals." It was the court's opinion that while this behavior constituted "shameful heterosexual-male-on-heterosexual-male conduct," it was not actionable under Title VII.
Only months later in another case in which the conduct was initiated by gay men, the same court reached an opposite ruling. The plaintiff, Arthur Wrightson [8] , claimed that his five gay male supervisors at Pizza Hut repeatedly made sexual advances toward him. The court determined that this conduct was similar to the more traditional harassment of women by men and, as a consequence, was a form of gender discrimination, falling within the scope of Title VII.
While the above-referenced examples involve behavior that occurred between men, there are also cases involving offensive conduct between women. The same biases regarding the definition of sex discrimination and standards that are applied to perpetrators of different sexual orientations are often evident in these cases as well. A review of one such case decided in California District Court in 1995, Easton, et al., v. Crossland Mortgage Corporation [9] , reflects these prejudices.
In the Easton case, the female plaintiffs claimed that a sexually hostile work environment was created by their female supervisors. The court records detail a list of offensive behavior allegedly committed by the defendants including ongoing conversation at work about breast size, repeatedly lifting their shirts, and encouraging plaintiffs to do the same, to compare physical attributes, making specific comments about one of the plaintiff's breasts and buttocks, and pinching her "on the rear end." The court's summary of facts indicates that one of the defendants "explained it was a prerequisite of employment that all women show their breasts," a comment that, while at first produced a response of shock, was ultimately experienced as not being serious. The record further states that the defendants "flicked up Easton's dress so that the two women could, ostensibly, determine 'the color of her underwear.' Easton took to wearing pants on account of the defendant's conduct."
The court ruled that because the defendants were heterosexual, and that their behavior was not interpreted by the plaintiffs to be explicit requests to have sex, the underlying gender discrimination required for a cause of action was not met.
Harassment or Horseplay?
The same cases heard in different courts have also produced contradictory rulings. Two notable examples demonstrate this trend which, according to more recent cases, show that same-gender sexual harassment is sometimes actionable under Title VII. In Quick v. Donaldson Company [10], heard in August, 1995, Phil Quick, a muffler plant employee, claimed he was the victim of "bagging," intentional grabbing and squeezing of testicles, by at least twelve different coworkers. The court concluded that since bagging was not an uncommon practice and that many coworkers had also been subjected to the same behavior, the incidents were not discriminatory or sexually harassing under the meaning of Title VII.
On appeal, the Eighth Circuit reached a different conclusion in mid-1996, when it determined the behavior to constitute a form of gender discrimination because women do not have testicles. In the Court's ruling, the sexual orientation of the allegedly straight perpetrators was not considered to be a critical factor.
The seriousness of same-gender sexual harassment is reflected in the U.S. Supreme Court's recognition of it as a legitimate form. In March, 1998, in a unanimous vote, the court reached a ruling which has enormous importance for the workplace. In Oncale v. Sundowner Offshore Services [11], the nation's highest court reversed a federal appeals court decision which had ruled that the federal law never applies to same-gender sexual harassment. An excerpt from the Supreme Court's opinion, written by Justice Antonin Scalia, states that "we see no justification in the statutory language or precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII."
Joseph Oncale's suit is based on his four-month experience as a worker on an oil rig in the Gulf of Mexico. Oncale, a heterosexual, claims he was subjected to sexual assault, battery, touching, and threats of rape by another coworker as well as two superiors, one of whom was Oncale's direct supervisor. When no action was taken after twice reporting the situation to his employer's highest-ranking representative on the job site, Oncale quit, fearing the harassment would escalate to rape. The named defendants characterized their conduct as "hazing" or "locker-room horseplay," concluding that no illegal harassment occurred, an opinion affirmed by the lower courts.
The Supreme Court's review of the case and subsequent ruling has set an important precedent in evaluating cases in which the conduct occurs between members of the same gender. The court record states "that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target."
Beyond its direct impact on same-gender sexual harassment cases in general, the Supreme Court's ruling has significant implications for gay and lesbian recipients of this form of harassment. Despite the current lack, at the federal level, of legal prohibition against discrimination and harassment based on actual or perceived sexual orientation, the Oncale decision creates a precedent for potential protection against such discrimination where it would simultaneously constitute a form of prohibited same-gender sexual harassment.
Guidelines for Employers
In light of the growing complexity of sexual harassment issues, the following guidelines are offered to employers:
1. Prohibit Inappropriate Behavior
- Adopt and enforce organizational policies that prohibit all forms of inappropriate workplace conduct.
- Review existing sexual harassment policies and make revisions, if necessary.
- Explicitly prohibit same-gender sexual harassment.
- Broaden the policy to address behavior that is inappropriate, though not necessarily illegal.
- Adopt a policy that prohibits discrimination and harassment based on actual or perceived sexual orientation.
- Redistribute the organization's anti-harassment policies with a strong statement of support from upper management.
2. Educate the Workforce.
- Remember that prevention remains the key element.
- Train all employees about current standards, regardless of historical norms.
- Provide guidelines for managers to ensure that situations are addressed fairly and consistently.
- Conduct training for Human Resources staff so that potential biases do not preclude successful resolution of complaints.
3. Take All Complaints Seriously.
- Evaluate each complaint in its particular context.
- Assess each situation from the point of view and experience of the recipient of the behavior, using a standard of reasonableness.
- Use consistent standards.
- Remember that the employer has an ethical responsibility to address inappropriate behavior, regardless of the legality of the conduct.
4. Take Appropriate and Consistent Action.
- Hold all employees accountable, regardless of gender, sexual orientation, or position in the organization.
- If a violation has been found, take immediate and appropriate corrective action.
- Ensure that any action taken is fair, consistent, and appropriate to the severity of the violation.
5. Create an Environment of Safety and Respect.
- Understand the issues.
-Sexual harassment is unwelcome conduct of a sexual or gender-based nature. -Depending on the specific behavior, sexual harassment can simultaneously be a form of harassment based on sexual orientation. - Dispel the common myths.
-Sexual harassment does not require that a sexual demand be made.
-Same-gender sexual harassment need not be perpetrated by a gay person.
- Directly address the discomfort regarding issues of sexual behavior or sexual orientation by those responsible for managing them.
- Take affirmative steps to remove all barriers, including homophobia, that contribute to employees' reluctance to surface complaints.
- Remember that people will only speak up if and when it feels safe to do so.
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[1] Wright v. Methodist Youth Services, 511 R. Supp. 307 (N.D. Ill. 1981)
[2] Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409 (1993)
[3] Garcia v. Elf Atochem North America, No.93-1257 (5th Cir. July, 1984)
[4] Fox v. Sierra Development Company, 876 R.Supp. 1169 (D.Nev. 1995)
[5] Prescott v. Independent Life and Accident Insurance Company, Civ. No. 94-A-383-N (USDC NALA, August 9, 1995)
[6] Yeary v. Goodwill Industries, 107 F.3d 443 (6th Cir. 1997)
[7] McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (1996)
[8] Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996)
[9] Easton, et al., v. Crossland Mortgage Corporation, 905 F.Supp. 1368 (C.D.Cal. 1995)
[10] Quick v. Donaldson Company, No. 4-94-CV-20093 (USDC Siowa August 4, 1995)
[11] Oncale v. Sundowner Offshore Services, 96-568
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