button Vol. 7
No. 3


Overtime Is About to Change
line New Frontiers in Harassment
line Reminiscing About Workplace Romance
line Web Surfing at Work
line NLRB Using The Web
line Shorts

Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

Human Resources and labor relations New Frontiers of Harassment,
   Trends in Same Sex Harassment.

Graphic  Facts About Same Sex Harassment
Graphic  Some Case History Examples
     * 1998 Oncale v. Sundowner Offshore Services case
     * 1999 Denver "Burt Chevrolet" case
Graphic  Most Recent Case Developments
     * Medina Rene
Graphic  Recent Conference Agenda Highlights This Issue
Graphic  Conclusion: Points to Consider
Graphic  Links to Cases and Laws (Oncale, Title VII, etc.)

Checkmark Graphic Facts About Same Sex Harassment

The Equal Employment Opportunity Commission (EEOC) does not track cases involving same sex workplace harassment, but it is clear that the number of men alleging sexual harassment in the workplace has increased during the past decade.

In 1994 men filed about 10 percent of all sexual harassment charges received by EEOC - and that number has increased to 14 percent by 2001, according to David Grinberg, an EEOC spokesman.

Claims of male-on-male workplace sexual harassment have increased since the U.S. Supreme Court ruled in March 1998 in the Oncale v. Sundowner Offshore Services case.

The court then ruled that same-sex harassment by men against men may violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment.

Often employers caught in the middle of a situation of sexual harassment involving members of the same sex just pass it off as "horseplay", or "locker room antics" etc.

This can be a big mistake.

To demonstrate the issues in same sex harassment we will review some of the more important cases and look at the details that are relevant to any potentially hostile work environment where sexual harassment is part of the scenario.

Checkmark Graphic Some Case History Examples

Graphic  1998 Oncale v. Sundowner Offshore Services case

The U.S. Supreme Court case, Oncale v. Sundowner Offshore Services Inc., involved a heterosexual Louisiana man who sued his employer under Title VII, claiming that he suffered sexual harassment and assault from the other men on the off-shore drilling platform where he worked.

The Supreme Court ruled that federal law protects employees from being sexually harassed in the workplace by people of the same sex.

In his opinion for the Court, Justice Antonin Scalia said it was the conduct itself, and not the sex or motivation of the people involved, that determined whether sexual harassment amounted to "discrimination because of sex" within the meaning of Title VII of the Civil Rights Act of 1964.

Sexual desire, whether heterosexual or homosexual, was not a necessary element of such a case, he said.

"We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations," he said.

"The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the victim's employment," he added.

Judge Scalia also stated "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. 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."

These statements have been used as key points in considerations of other cases that were to follow.

You can read the entire opinion by clicking here.

Graphic  1999 Denver "Burt Chevrolet" case

In August of 2000 the EEOC awarded a $500,000 settlement in a sexual harassment lawsuit against Burt Chevrolet and LGC Management.

The case involved 10 former salesmen who alleged persistent same-sex harassment by male managers in the Denver Colorado auto dealership of Burt Chevrolet.

While two male used car managers were the primary cause of the unlawful behavior, the suit alleged that a number of other managers contributed to and perpetuated the hostile environment by telling sexual jokes, presenting sexual materials at sales meetings, and tolerating offensive sexual conduct in the workplace.

Burt Chevrolet did have a written policy in place prohibiting sexual harassment and stating its commitment to promptly investigate such allegations. However, the suit states that complaints by the salesmen were ignored for nearly a year.

It was also alleged that management generally dismissed the offensive conduct as "horseplay" or "locker room antics."

Joseph H. Mitchell, regional attorney of the agency's Denver District Office, who was responsible for prosecuting the case, said:

"The conduct in this case involved verbal ridicule and physical torment which created a hostile work environment designed to undermine the masculinity of male personnel. If such blatant discriminatory action were directed toward female workers, there would be no disagreement over whether it was sexual harassment. But because it happened to men, management was initially indifferent to the situation."

EEOC General Counsel C. Gregory Stewart warns that: "The Commission will continue to prosecute harassment cases to the fullest extent of the law when employers reject our pre-litigation attempts at voluntary resolution.

Even though employers may have anti-discrimination policies in place, they must make sure that such policies are taken seriously and implemented, not merely put on a shelf to gather dust."

L.G. Chavez, who was Executive Vice President of Burt Chevrolet at the time, said this:

"The allegations made are not representative of our organization and we will continue to maintain our long-standing zero tolerance' of harassment policy at the company. We found it to be in the best interest of everyone involved to get this matter behind us and not become engaged in a protracted legal battle."

Checkmark Graphic Most Recent Case Developments

Graphic   Medina Rene, 9th Circuit U.S. Court of Appeals
     ruling stands intact

Medina Rene is a gay man who worked as a butler at the MGM Grand Hotel in Las Vegas between February 1994 and February 1996. After leaving the job, Rene sued the hotel in 1997 under a section of the federal Civil Rights Act that provides damages of up to $300,000 for employment discrimination based on sex.

Rene alleged that his supervisor and co-workers subjected him to crude harassment almost on a daily basis. They were all men. Rene then complained to management.

He said they grabbed his crotch, poked him, made him look at pictures of naked men having sex, whistled and blew kisses at him and called him "sweetheart," among other things.

In September of 2002 the 9th Circuit U.S. Court of Appeals ruled 7-4 in Rene's favor that same-sex sexual harassment is actionable under Title VII of the Civil Rights Act of 1964.

The court found that Rene was indeed targeted "because of sex," noting that to decide otherwise would be to exclude gay men and lesbians from the protection of Title VII as men and women.

In March of this year the U.S. Supreme Court decided not to review the case of Medina Rene. By not reviewing the case the Supreme Court lets the ruling of the 9th Circuit U.S. Court of Appeals stand intact.

The Circuit Court ruled that whenever workplace harassment is sexually explicit, the mix of motives in the minds of the perpetrators is beyond court analysis.

Checkmark Graphic Recent Conference Agenda Highlights This Issue

In a series of conferences taking place from June through September of this year one of the topics covered is
"Protecting Your Organization from Expanding Workplace Harassment and Retaliation Liability".

The conference is sponsored by the Council on Education in Management.

The promotional material for this topic of the conference states:

"Sexual harassment and retaliation claims continue to be one of the fastest growing areas of employment litigation with settlements and jury awards in the millions. Harassment charges filed with the EEOC have more than doubled since 1990. And, as the number of harassment and retaliation claims continue to increase, the courts are also expanding the scope of liability. In this session, you will discover how to implement policies and practices that will protect your organization from new risks for harassment and retaliation claims."

Some of the points to be covered are:

    * Defining the standards that courts are applying when evaluating "other" forms of harassment

    * What is the impact of recent court rulings on same sex, same race and disability harassment

    * Preventing and responding to Internet and email harassment (etc.)

We noted that one of the topics concerns the impact of recent court rulings on same sex, same race and disability harassment.

More information on these conferences can be found at http://www.seminarinformation.com/wconnect/wc.dll?sis~details1~1883~SBH

Checkmark Graphic Conclusion: Points to Consider

Though relatively uncommon, employers and employees alike should be aware of the potential for same sex harassment within the workplace and be prepared to confront the situation head-on, should it occur.

There should be an adequate policy and reporting mechanism in place by the employer, but the employee will have no legal defense unless they fully utilize every option available to them to remedy the situation before bringing a lawsuit. There is a responsibility for the employee to come forward in these situations.

Also, there is a distinctive difference between "harassment" and "unlawful harassment", and employees and management should both be trained on this difference.

If a supervisor is rude or nasty to someone and they quit their job because they "can't take it anymore", this is not necessarily unlawful harassment. The behavior in question must be associated with a protected category, such as harassing a person because they are Hispanic, Jewish, female, or over 40 years old, etc.

The standard most often used in harassment cases is: "What would a reasonable person in the position of the victim find appropriate or inappropriate?" We referenced this in Judge Scalia's opinion in the Oncale vs. Sundowner case mentioned above.

In addition here are some things that can be done to prevent and respond to the potential of same sex harassment in the workplace:

For the Employer:

    1.) Update your sexual harassment policies to include same-sex harassment. Communicate this policy to all the employees, document it, and mean it.

    2.) Educate your supervisors about same-sex harassment. Let them know it is to be taken seriously and not to be disregarded. "Horseplay" and "locker room antics" etc. is not an appropriate response.

    3.) Educate your employees that sexual harassment means sexual discrimination. Employees need to understand that sexual harassment is really sexual discrimination under the law.

    4.) Investigate all forms of sexual harassment in a timely and fair manner, including same sex harassment. The sexual orientation of the people involved is not necessarily the main issue at stake.

For the Employee:

    1.) After you have experienced personally objectionable sexual content, ask yourself if you believe that the sexual content you experienced will lead to future discrimination against you.

    2.) Monitor your environment to see if negative or positive workplace events occur because of the sexual situation you experienced. A positive workplace event might occur when you are given a promotion only to find it was due to your supervisor wanting you more available to listen to his or her sexual content.

    3.) Document and obtain witnesses, if possible, to the sexual content and discrimination. Document the nature of the sexual content and discrimination, date/time, situation, and witnesses to the event.

    4.) File a complaint with your supervisor or human resource (HR) department. Ask for a prompt investigation, to be reassigned during the investigation to a different supervisor if your supervisor will potentially be involved in the investigation. Lastly, ask for an outcome report.

Checkmark Graphic Links to Cases and Laws

Link: Opinion in the Oncale vs Sundowner case

Link: Title VII of the Civil Rights Act of 1964

3. Reminiscing About Workplace Romance. Next Page

The Contents of this News Letter are intended for general information
and should not be construed as legal advise or opinion.
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