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Same-Sex Sexual Harassment in the Workplace

Over the past few decades, employers have become increasingly aware of the dangers of tolerating sexual harassment in the workplace. Many businesses now have formal policies on the subject. Insurance companies have made employment practices liability insurance available to protect businesses from the financial consequences of alleged harassment claims. When people imagine a sexual harassment situation, they may think of a male employee harassing a female one. However, that is not the only possible scenario. As society has grown more accepting of gay and lesbian lifestyles, such employees have become more comfortable revealing this aspect of themselves. One consequence of this is the potential for same-sex sexual harassment claims.

The U.S. Supreme Court dealt with the matter of same-sex sexual harassment in a 1998 decision, Oncale v. Sundowner Offshore Services, Inc. Joseph Oncale worked on an offshore oil platform as part of an eight-man crew. Three members of the crew forcibly subjected him to sex-related, humiliating actions in front of the other crewmen; two of them sexually assaulted him and one threatened him with rape. His complaints to company supervisors produced no improvement in the situation; in fact, the supervisor verbally abused him. He eventually quit due to the harassment and verbal abuse. He sued the company, but the trial and appellate courts ruled that, as a male employee, he had no cause of action under the federal Civil Rights Act of 1964 because the alleged harassers were also male. The Supreme Court, however, disagreed.

Writing for a unanimous court, Justice Antonin Scalia said that there was no justification in the law for excluding same-sex harassment claims from its requirements. The prohibition of sexual harassment, he wrote, forbids behavior “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” However, he cautioned that the social context in which behavior occurs weighs on whether it is harassment. “A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office…Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

This implies that, for an employee to win a same-sex sexual harassment claim, the employee must suffer some kind of negative consequence in addition to the sexual nature of the behavior. If suggestive remarks are made in the person’s presence but he suffers no resulting harm (such as denial of promotions or salary increases) and management responds to his complaints, a court will probably not find this to be harassment. Conversely, if his work conditions deteriorate because he will not “play along” with his harassers, the court will be more likely to rule in his favor.

Employers should be aware that same-sex sexual harassment is legally equivalent to heterosexual harassment, and they should not permit it to occur in their workplaces. They need not ban all suggestive talk from the workplace, but they cannot allow unfair treatment against those who object. Finally, unwanted physical contact such as sexual assault is never excusable or permissible.

Employers should make sure their sexual harassment policies include statements about same-sex harassment, and they should educate supervisors and employees about the policy. All allegations of harassment should be promptly investigated. Finally, they should check with their insurance agents to make certain that they have the proper coverage for those claims that turn into lawsuits.