• News
  • Law

Leveling the playing field, part II: Current trends

Legal and ethical rules governing claims of bias and discrimination

We all remember the movie “Disclosure” with Demi Moore and Michael Douglas, in which Michael Douglas portrayed a male employee suffering legitimate sexual harassment from his former paramour, played by Demi Moore. That film turned out to be a sign of the times.

Complaints by men claiming sexual harassment by women have increased over the years. This is likely due to the fact there is progressively less stigma attached with such claims, causing more men to come forward.

Some men who have suffered silently for years may be feeling empowered by the increasing acceptance of legitimate harassment claims, and the fact that they are being taken seriously by colleagues and management alike. Not only are more men coming forward to complain of sexual harassment by women in the workplace, they are also complaining of sexual harassment by other men.

An example of this trend was demonstrated in the recent lawsuit that gained national attention through its inclusion of allegations of sexual harassment by ICE Chief of staff Suzanne Barr.

Barr resigned amidst the allegations of sexual misconduct, which included specific allegations of unwanted sexual attention bestowed on several male employees.

Male-on-Male Sexual Harassment

Sexual harassment is described by the EEOC as gender discrimination in violation of Title VII (sexualharassmentsupport.org/SHworkplace.html). In recent years, there has been an increase in complaints relating to male-on-male sexual harassment in the workplace. This type of sexual harassment was made actionable in the seminal case of Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, where the U.S. Supreme Court held that sex discrimination that consists of same-sex sexual harassment is legally actionable under Title VII. The Court held that Title VIIís language “because of Ö sex” protects not only women, but men also (Id. at 78), and that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” (Id. at 80.) The Court also pointed out that not all unpleasant conduct in the workplace is actionable, and that in order to be actionable, sexually harassing conduct must be so objectively offensive so as to alter “conditions” of employment, and that objectivity should be judged from a “reasonable person in the plaintiff’s position” perspective taking all of the considerations into account. (Id. at 81).

The Court offers the example of a professional football coach smacking a player on the buttocks as he is heading onto the football field as conduct that is not sufficiently abusive, whereas the same conduct expressed by the coach toward his secretary back at the office would be, whether the secretary is male or female. (Id. at 81.)

Analysis of social context, surrounding circumstances and common sense will assist courts and juries to distinguish between “simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiffís position would find severely hostile or abusive.” (Id. at 81-82).

According to the Equal Employment Opportunity Commission (EEOC), male-on-male sexual harassment claims have doubled between the years of 1992 and 2008, going from 8 percent to 16 percent (Krista Gesaman, "Abuse of Power," Newsweek (Jan. 13, 2010), newsweek.com/id/230677/output/print). It has been observed that despite traditional beliefs that sexual harassment often stems from a relationship gone wrong, sexual harassment of both men and women “has more to do with issues of power for the purpose of humiliation than with sexual attraction.” (Ibid.) With male-on-male sexual harassment, the conduct engaged in often seeks to “embarrass and target the male victims,” not to flirt with them (Ibid.).

As with female victims, male victims in this uncomfortable position may be reluctant to report the abuse for fear of losing their job in difficult economic times. Males also may fear the repercussions interpersonally of being seen as someone who is unable to handle abusive conduct in the workplace, and worry that he should be able to just “take it.”

The increased number of males reporting sexually abusive conduct may very well reflect an increase not in the harassing conduct itself, but an increase in reporting. One could argue the instances of such conduct should reasonably be decreasing over the years due to the proliferation of sexual harassment claims filed, and the resulting increase in company training on this issue.

Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

User Response
0 UserComments