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Is Same-Sex Sexual Harassment Illegal?

Published By | Feb 24, 2022 | Employment Law, Sexual Harassment |

Best Ohio Sexual Harassment Attorney Reply: Can my male boss make sexual comments towards male employees? What is the standard for same-sex sexual harassment? Is same-sex harassment real?

Sexual harassment is far too common in the workplace. No employee should ever go to work expecting or having to accept that their coworkers or supervisors are going to make rude, inappropriate, sexual comments towards them. Some supervisors or coworkers will even go as far as inappropriately touching or sexually assaulting employees. This truly disgraceful and depraved behavior is unlawful. The top Ohio employment attorneys at Spitz, The Employee’s Law Firm continues to fight back against this disgusting conduct. (Best Law Read: Can I Sue For Sexual Harassment?; What Is A Sexually Hostile Work Environment?; and Is Sexual Harassment At Work Common?).

There are two main laws that make sexual harassment in the workplace unlawful. First, Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment based on race/color, religion, gender/sex, national origin, age, and disability. Sexual harassment falls under the category of gender discrimination. Next, the Ohio Revised Code § 4112.01 et seq is almost identical in its prohibition of discrimination in the workplace based on race, religion, gender, national origin, age, or disability. R.C. § 4112.02(A) provides:

It shall be unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.”

Traditionally, when sexual harassment becomes an issue, it is a male supervisor or coworker sexually harassing or abusing a female subordinate or coworker. In rarer cases, it is a female supervisor or coworker sexually harassing or abusing a male subordinate or coworker. But, the topic of today’s blog is same-sex sexual harassment.

Same-sex sexual harassment really isn’t that much different from regular sexual harassment, except that it is less commonly reported. This may have to do with the infrequency of its occurrence, but it also may have something to do with the fear of the victims who feel embarrassed or ashamed of the conduct they endure. The top Ohio employment lawyers would tell you that you don’t have to feel this way because they are dedicated to holding companies, supervisors, and coworkers accountable for their actions, and no one should be subjected to sexual harassment at work.

Let’s take a look at the case in the United States Supreme Court titled Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (U.S. 1998). This case established the rule that same-sex sexual harassment falls under Title VII the same way normal sexual harassment does. This case began when the plaintiff, Joseph Oncale, a male worker at Sundowner Offshore Services, Inc. (“Sundowner”), filed a complaint alleging that his male coworkers sexually harassed him in the workplace. The Court first discussed the matter that men are protected by Title VII just as women are (as well as all members of the LGBTQ community pursuant to a recent United States Supreme Court decision; Best Law: What does Bostock v. Clayton County mean to the LGBTQ Community?):

“Title VII’s prohibition of discrimination ‘because of…sex’ protects men as well as women … and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discrimination against members of his own race. ‘Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.’…If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination ‘because of…sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Oncale at 78-79.

Previous decisions by lower courts made this decision a little complicated. The United States Supreme Court compared same-sex sexual harassment to the longstanding belief that an employer will not discriminate against members of their own race. This argument has already been rejected, and so the court doesn’t consider that to be an obstacle for this case. The Supreme Court continued on to hold:

“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonable comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits ‘discrimination…because of…sex’ in the ‘terms’ or ‘conditions’ of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Oncale at 79-80.

This is good news because now, no matter what, any supervisor or coworker who says inappropriate or sexual statements to any other employee, can be held accountable for discrimination under Title VII. In fact, the nature of the harassment doesn’t even have to be motivated by a sexual desire aimed towards an employee. Let’s listen to the Supreme Court:

“Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct com-parative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination…because of…sex.’” Oncale at 80-81.

This precedent shows that inappropriate comments made, even when there is no sexual desire on the part of the employer or coworker making them, are prohibited. Now it seems appropriate to look at a case from the Ohio Supreme Court titled Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169 (Ohio Sup. Ct. 2000).

In Hampel, the employee, Laszlo J. Hampel, filed a claim for sexual harassment and intentional infliction of emotional distress against his supervisor at Food Ingredients Specialties, Inc. Hampel worked as a cook where he had to cook thousands of pounds of meat at a time and place them into bins. There was an ongoing issue of employees not providing enough bins for Hampel to place the cooked meat so he went to his supervisor, Jerry Hord, to complain and vent about the problem. The following conversation took place:

Hampel: I’m fed up with the way things are running around here, all this product, and no bins to put it in. One of these days I’m going to blow.

Hord: Hey, Laz, you can blow me.

Hampel: What did you say?

Hord: I said, you can suck my dick.

Hampel: I’m frustrated because there are no bins and you tell me to suck your dick…

Hord: But Laz, I only want you to suck my dick. You’re the only man in the world that I want to suck my dick. Danny and Ed don’t do anything for me.

Hampel: Man, you’re sick. Hampel at 171.

At the end of this shift, Hampel went to talk to Hord about his earlier comments, to which Hord responded “if you don’t like it, quit.” Hampel then reported Hord’s behavior to higher up management, where he was interrogated and treated as if he did something wrong. After this report Hord approached Hampel with an insincere apology. Hampel filed a written complaint against Hord. The next day, Hord wrote Hampel up for doing a poor job of cleaning.

In the ensuing months, Hord would continue to torment Hampel at work, while the company did nothing to reprimand him. Hampel became severely depressed and had recurring nightmares about Hord demanding oral sex from him. He took medical leave and eventually resigned before bringing a claim before the Cuyahoga County Court of Common Pleas. This is a reminder that Title VII as well as Ohio R.C. § 4112.02 have anti-retaliation protections as well that prevent employers from taking any adverse action against employees who have reported, opposed, or participated in an investigation related to sexual harassment.

The Ohio Supreme Court in Hampel determined that Hord’s behavior constituted a hostile work environment on the basis of sex, and that Hampel could recover:

Thus a continuing pattern of behavior that differentiates a particular employee or group of employees because of sex violates the equal ‘conditions of employment’ requirement of Title VII. Clearly, then, if a supervisor consistently uses physical force toward an employee because of that employee’s sex, the use of such force may, if pervasive enough, form an illegal ‘condition of employment.’ So too a pattern of mixed sexual advances and physical force may be illegally discriminatory if based on the employee’s sex.

For more information on hostile work environments, check out what the top Ohio employment law attorneys had to say in some of our previous blogs (See: What Is A Sexually Hostile Work Environment?; Do I Have A Hostile Work Environment Claim Against My Job?; and I’m Being Sexually Harassed By My Boss; can I Sue?).

If you are being sexually harassed by a supervisor or coworker that is the same sex or gender as you are, do not hesitate to call the right attorney. Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination. Call our top attorneys in Cleveland, Columbus, Cincinnati, Youngstown, Detroit, and Toledo.

Disclaimer:

The materials available at the top of this page and at this gender discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do if my boss makes homosexual sexual proposals to me”, “I’m being sexually harassed by a woman supervisor” “my supervisor grabbed my ass”, “my boss is touching me and making me uncomfortable,” “I’ve been wrongfully terminated because I reported sex harrassment,” or “how do I find the best employment lawyers to sue the company that I work for”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.