What You Need to Know about Same-Sex Sexual Harassment

By Fink, Ross L.; Perry, Sandra J. | Industrial Management, March/April 1999 | Go to article overview

What You Need to Know about Same-Sex Sexual Harassment


Fink, Ross L., Perry, Sandra J., Industrial Management


Executive Summary

When we think of sexual harassment, many of us imagine male bosses demanding sexual favors from female subordinates. But it's a lot more complicated than that: Same-sex sexual harassment recently has been legally recognized by the Supreme Court of the United States. That means managers can't afford to overlook any complaints of sexual harassment, even when the alleged harasser is the same sex as the victim.

Teasing, joking, and name-calling in the workplace are not generally considered productive activities, but should management take action to prevent them in all situations? Is this appropriate use of management's time? If the "kidding around" involves both men and women and takes on a sexual tone, it may easily be considered sexual harassment and a form of discrimination under Title VII of the Civil Rights Act of 1964. But would it be considered sexual harassment if all the individuals involved were of the same sex? Many people believe that it is impossible to have male-to-male or female-to-female sexual harassment. However, in 1998 the Supreme Court decided in Oncale vs. Sundowner Offshore Services that same-sex sexual harassment is possible.

The purpose of this article is to examine what constitutes same-sex sexual harassment from a legal perspective and to offer suggestions for handling this behavior in the workplace. To provide the necessary background, a brief explanation of legal issues involving sexual harassment is provided. Next, two court cases are examined. Finally, guidelines are provided for handling behavior that may qualify as same-sex sexual harassment.

What is sexual harassment?

The U.S. Equal Employment Opportunity Commission, which investigates alleged violations of federal civil rights laws, defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. (The complete text of Title VII can be found at http://www.eeoc. gov/facts/fs-sex.html on the Web.) The courts have divided sexual harassment into two categories -quid pro quo and hostile work environment. The quid pro quo form of sexual harassment describes a situation in which a supervisor offers job benefits in exchange for sexual favors. Failure to submit to the sexual favors results in the loss of employment, promotions, or benefits. There have been a handful of same-sex cases decided under this approach. In general, the courts have supported this form of same-sex sexual harassment.

Unlike quid pro quo, the hostile environment describes a case in which a supervisor, a co-worker, or even a customer is the perpetrator. This form of sexual harassment requires that a severe and pervasive hostile working environment exist. The hostile environment form of sexual harassment has been the most confusing to the courts and the public, especially in terms of answering whether same-sex sexual harassment has occurred.

Based on the 1986 case of Meritor Savings Bank, FSB vs. Vinson, an actionable case of hostile environment sexual harassment requires the following five elements:

The employee was a member of a protected class.

The employee was subjected to unwelcome sexual harassment.

The harassment was because of sex.

The harassment had the effect of unreasonably interfering with the employee's work performance and creating an intimidating, hostile, or offensive working environment.

There is a basis for imputing liability to the employer.

Being either male or female easily satisfies the first element.

The second element requires that the behavior be unwelcome. "Unwelcome" is not the same as voluntary. An employee may go along with harassing behavior and therefore participate voluntarily, and yet find the conduct unwelcome. …

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