Same-Sex Sexual Harassment

Sexual harassment against a co-worker is illegal no matter the sex of the harasser and the person being targeted. There is no free pass. However, the law becomes confusing considering the type of harassment one person might inflict on another. Same-sex sexual harassment can contribute to a hostile work environment or lead to awkward feelings around the office. Such an environment can cause long-term health conditions, such as depression and anxiety. It can also lead to additional absences and less productive employees.

What Constitutes Same-Sex Sexual Harassment?

Harassment occurs when a person at work, such as a supervisor, manager, co-worker, customer, or client, harasses an employee based on their sex. In same-sex sexual harassment, the harasser is the same gender as the person they are targeting. Harassment can include a variety of actions, including comments, jokes, innuendoes, requests for sexual favors, unwelcome sexual advances, assault and battery, and rape.

According to the Equal Employment Opportunity Commission (EEOC), the harasser can be a woman or a man, and the person who is the subject of the harassment can be of the same sex. If an incident is so severe, it can lead to an offensive work environment or an adverse employment action. Certain instances of same-sex harassment include the following:

• When a male employee targets another male co-worker by calling them offensive names, touching them inappropriately, and leaving sexually explicit images in their workspace.
• A female boss may tell her female underling to wear suggestive clothing to entice customers.
• Someone is asking a colleague to perform a sexual favor in exchange for a promotion or to keep their job.
• Someone in the office may be making sexist remarks and/or jokes that makes a co-worker uncomfortable.
• An individual in the office is making lewd noises, whistling, or staring. They could also be leaving inappropriate gifts, phone calls, or notes on a co-worker’s desk.

More graphic examples include the following:

• Taunts about genitalia
• Lewd comments or jokes
• Verbal or sexual assaults
• Intimidating same-sex employees
• Sexually suggestive simulations
• Derisive flirting or feigned attraction

How Does the Federal Government Treat Same-Sex Sexual Harassment?

The cases brought by the federal government, along with decisions rendered by the courts, have carved out a unique niche as far as same-sex sexual harassment is concerned. For instance, a 2012 EEOC case against The McPherson Companies, Inc. in Alabama was dismissed by the courts. In that case, a male co-worker said he routinely endured insensitive comments from co-workers. However, the comments in question were commonplace around the work area. The courts dismissed the case because the common language in the area was usually targeted equally among the workers and without malice.

In Nichols v. Azteca Restaurant Enterprises, Inc., a male waiter faced regular harassment from his co-workers who teased him saying that he held his tray like a girl and made fun of him for refusing to have sex with a female co-worker. The federal Court of Appeals agreed that this constituted harassment because the person in this case was being targeted because he did not conform to traditional examples of masculinity.

The United States Supreme Court confirmed through various cases that Title VII of the Civil Rights Act of 1964 prevents sexual harassment from a member of the same sex. The prominent case that highlighted this was Oncale v. Sundowner Offshore Services, Inc., in which a male co-worker claimed that he faced constant harassment from his male colleagues. They allegedly subjected him to humiliating, sex-related acts and threatened to rape him.

In 2013, the EEOC sued Wells Fargo Bank, N.A. for violations of federal law. Four female tellers at the Reno, Nevada branch complained that they were facing harassment from a supervisor and a fellow employee. The tellers routinely encountered graphic sexual comments, gestures, and images. The harassment also included invasive comments about their bodies and sex lives, as well as inappropriate touching and grabbing. In addition, despite repeated complaints about the harassment, management did not take any effective action against the harassers.

What Do Certain States Say About Same-Sex Sexual Harassment?

If a case is unsuccessful at the federal level, a person can attempt to sue at the state level, since the laws might be more favorable to workers. In Pennsylvania, the Pennsylvania Human Relations Act (PHRA) prohibits discrimination based on race, color, religion, ancestry, age, or national origin by employers with more than four employees. Although it does not specify same-sex sexual harassment, it does prohibit harassment.

In New Jersey, the New Jersey Law Against Discrimination (NJLAD) also prohibits discrimination, but it specifically lists sexual orientation or gender. The courts clarified this in Zalewski v. Overlook Hospital when it ruled that the vague language of the law allowed for same-sex sexual harassment to be included in its provisions.

What are Some Surprising Facts about Same-Sex Sexual Harassment?

Although most companies inform their employees about sexual harassment, there are certain details that many might find interesting. These facts can also be useful to those who believe they are suffering from sexual harassment or those who may not realize they are suffering from it. These facts are as follows:

• The employee does not have to be the person being harassed; that person can be offended by the misconduct of the harasser.
• The harasser can be the employee’s supervisor, a supervisor from a separate department, a co-worker, or a non-employee of the company.
• A harasser does not have to be a male; women are just as capable of harassing their co-workers as men and can be held liable.

Is a Sexual Motive Necessary in a Same-Sex Sexual Harassment Case?

The United States Supreme Court has ruled that a sexual motive is not necessary for there to be a case of same-sex sexual harassment. There must be other factors present for the case to move forward. Those factors are as follows:

• A woman is harassed by another woman in the workplace in a sex-specific and derogatory manner, and the harasser has a general hostility to other women in the workplace.
• The employee has direct evidence to compare how the harasser treats both sexes and can show that the harasser treats members of their own sex in a discriminatory way.

As the target of harassment, a person must prove in court that the harasser did not simply use language that had a slight tinge of offensive implications, but that the person would not have conducted the harassment had the target been the member of a different gender.

As with many issues, there is an exception to the law, and that occurs when the harasser is a mean person. When a person mistreats both sexes equally, the person may not be a great colleague, but they are not guilty of violating federal or most state laws.

What Should I Do if I Experience Same-Sex Sexual Harassment?

Those who endure same-sex sexual harassment should first confront the person who is engaging in the harassing behavior. That person should be asked to stop and be told why the behavior is bothering the target. If that fails to occur, the next stage will be to go to management to speak with a supervisor about the situation. This is a necessary step, as it gives the company an opportunity to correct the situation internally. If a target is reluctant to go to a supervisor, or if the harasser is a supervisor, they can also go to the Human Resources (HR) Department to discuss the situation. This is also an opportunity to detail what has happened and offer potential resolutions.

The company may fail to act in a manner satisfactory to the person making the complaint. Unfortunately, that is not the only way certain companies will respond to these types of accusations. There are companies that will retaliate against the accuser. That retaliation can come in multiple forms, including the following:

• Termination
• Demotion
• Failure to promote
• Reassignment to an unfavorable position

If a company is not being responsive or has retaliated, the next step is to report them to a government agency. A person can file a complaint with the EEOC at the federal level, or with the Pennsylvania Human Relations Commission (PHRC) or the New Jersey Division on Civil Rights at the state level. Regardless, a person should hire a sexual harassment lawyer to ensure that they handle the process the correct way and that they do not miss any details.

Philadelphia Sexual Harassment Lawyers at The Gold Law Firm P.C. Defend Employees Suffering from Same-Sex Discrimination

It is illegal for anyone to face sexual harassment at work, even if it is from someone who is a member of the same gender. Men and women have a right to work in an environment that is free and open. If a person is enduring same-sex sexual harassment, the Philadelphia sexual harassment lawyers at The Gold Law Firm P.C. can help. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia and Pennsauken, New Jersey, we serve clients throughout South Jersey and southeastern Pennsylvania, including Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, Montgomery County, and New York.