Can an employee sue for same-sex harassment?

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Question:

I'm a gay man, and I wait tables at a downtown sports bar. A few of the guys I work with have started mocking the way I dress, the way I walk, the way I talk to customers, just everything about me. They call me "sister" and "girlfriend," they joke about my pants being too tight, call me "swishy," "fag," "homo," and worse. It started out with an occasional teasing comment, but now they rag on me all of the time. One of them has started slapping me on the bottom and even once pretended to hump me from behind, while saying that he knew I wanted him and he would find me alone one day. I was annoyed and angry, but now I'm a little scared too. Do I have a sexual harassment case based on my sexual orientation?

Answer:

Some states prohibit discrimination and harassment based on sexual orientation. If you work in one of them, you may well have a good sexual harassment claim. Harassment is defined as unwelcome conduct that is offensive, hostile, or abusive enough to alter the conditions of the victim's employment. You have been subjected to repeated anti-gay slurs, physical touching, and even a threat. Generally, that's enough to show that you are facing a hostile working environment. 

However, not every state outlaws discrimination based on sexual orientation. Title VII -- the primary federal law addressing employment discrimination -- doesn't protect employees from sexual orientation discrimination. But, Title VII does prohibit discrimination based on sex. And, a number of court cases have allowed victims to proceed with harassment cases when they are subjected to offensive conduct at work based on their failure to conform to traditional gender stereotypes.

The Supreme Court case that set the precedent in this area involved a woman who was passed over for partnership at an accounting firm. She was told that she was too aggressive, should speak, act, and dress more femininely, and needed "a course in charm school." She successfully argued that these comments showed she wasn't made partner, at least in part, because she failed to conform to the gendered stereotypes that a woman should be charming, passive, and feminine. Courts have applied the same reasoning in cases involving men who are harassed for acting "feminine." In one case, a waiter was harassed by his coworkers for carrying his tray "like a girl" and for not wanting to have sex with a female coworker; he was referred to as "she" and "her," and called "faggot" and "female whore." The federal Court of Appeals that decided the case found that this was sexual harassment: He was being mistreated because he did not conform to his coworkers' gender-based stereotypes of masculinity. Therefore, he was being harassed based on his sex, not based on his sexual orientation. The distinction is important because, as noted above, sex discrimination is illegal everywhere; sexual orientation discrimination is not yet illegal in every state. 

Especially because it sounds like your situation is escalating, you should talk to an experienced local employment lawyer immediately to learn your rights. It's important to make clear that this behavior is unwelcome, and that you want it to stop. You will likely also want to make a formal complaint to your employer, both to preserve your legal rights and to try to protect yourself from retaliation by your coworkers. An attorney can help you figure out the best way to proceed. 

 

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