Workplace Articles By BCC
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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.