Society has, to a degree, become more accepting of same-sex relationships and even marriages. However, that acceptance has not permeated into the workplace. When people think of sexual harassment, they don't always think about so-called "same-sex harassment." Does that even exist? There are cases, though, where the type of harassment alleged seems to be based on sexual orientation. So, what can you do if you find yourself in that situation?
Sexual harassment is not always men harassing women
Most of us assume that sexual harassment involves a male employee harassing a female employee. While that may be true in the majority of cases, there are other forms of sexual harassment that are also illegal. Lewd sexual comments, sexual propositioning, and even unwanted physical touching of a sexual nature are common examples of sexually harassing behavior. But, what about a male supervisor calling another employee a “faggot” or a “sissy”?
Women can also be guilty of sexually harassing men
Yes, the sexually harassment tide flows both ways. There are have also been cases, though not many, where male employees allege sexual harassment by a female supervisor. In fact, the EEOC has reported that men now make up more than 16% of sexual harassment complainants. The question that many clients have is whether it matters that your supervisor is not actually attracted to you? Is that still considered sexual harassment? The answer is that actual sexual attraction is not required to prove unlawful sexual harassment in the workplace.
First, what is the definition of "sexual harassment?"
According to the Equal Employment Opportunity Commission (EEOC), which is the administrative body responsible for enforcing federal laws that make it illegal to discriminate or retaliate against someone in the workplace, sexual harassment is defined as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
The EEOC’s regulations make it clear that “[b]oth victim and the harasser can be either a woman or a man. . .” Hence, sexual harassment of all types is still a violation of Title VII.
What is required to bring a sexual harassment claim?
Sexual harassment claims have always been somewhat difficult to prove, as the conduct has to reach a certain level before it becomes actionable. Specific facts or elements must be proven in order to be successful on a sexual harassment claim against your employer. First, you must prove that you suffered “intentional, unwanted” harassment “because of your sex” and that harassment has to be “severe or pervasive.” You must also prove that the harassment had a negative effect on your employment, specifically the “terms, conditions or privileges” of your job. Probably the most important element requires a showing that management was aware of the harassment (or should have known about it) but did nothing to stop it or prevent it from recurring. If this showing is not made, the employer may escape liability.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.