Same-Sex Harassment: Know Your Rights

Understand what same-sex harassment is and what you can do about it.

Updated By , Attorney

Sexual harassment on the job by a supervisor, coworker, or even a third party such as a client or customer, is a violation of federal law and of many state and local laws. Sexual harassment can occur between members of the opposite sex, or it can occur between members of the same sex. This article focuses on same-sex harassment.

Sexual Harassment in the Workplace

Sexual harassment occurs when a coworker, supervisor, or other third party subjects an employee to unwanted conduct based on his or her sex. Such conduct includes demands for sexual favors, unwelcome sexual advances, jokes or comments of a sexual nature, or other physical or oral conduct of a sexual nature. This type of behavior is illegal when it creates an intimidating, hostile, or offensive working environment for the victim employee, or when it results in a tangible employment action (such as the employee being fired or demoted).

Sexual harassment need not be sexual in nature, so long as it is harassment based on the victim's sex. For example, a supervisor who routinely makes sexist (though not sexual) comments that female employees find offensive has likely engaged in sexual harassment.

Same-Sex Sexual Harassment

The U.S. Supreme Court has clearly held that sexual harassment is illegal under Title VII, even if it is perpetrated by someone of the same sex. In one case, a male employee was harassed by his male coworkers while working on an offshore oil rig. The male coworkers had subjected to him to humiliating, sex-related acts and had threatened him with rape. The Court held that Title VII prohibits same-sex harassment, noting that sexual harassment need not be motivated by sexual desire. (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).)

In other cases, courts have held that harassment based on gender stereotypes of how a man or woman should act is illegal under Title VII. For example, it's illegal to harass a woman for being too masculine or to harass a man for being too effeminate. In one case, a male waiter was harassed by his male 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. (Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001).)

To complicate matters, courts have drawn a distinction between this type of gender-stereotyping and discrimination based on sexual orientation. Because sexual orientation is not explicitly protected by Title VII, some courts have held that employees who are harassed because of their sexual preferences are not protected under federal law. The line can get blurry, though. For example, if a homosexual male employee who exhibits effeminate characteristics is being harassed, is it due to his gender nonconformity or his sexual preferences?

This has led some courts to reach the conclusion that sexual orientation discrimination is prohibited by Title VII because it necessarily involves stereotypes about how men and women should act (and to whom they should be attracted). See our article on sexual orientation discrimination to learn more.

State and Local Laws Prohibiting Employment Discrimination Based on Sexual Orientation

Around 20 states and several cities have laws prohibiting employment discrimination based on sexual orientation. In these states, there isn't the same need to draw a fine line between harassment based on sex and harassment based on sexual orientation; both are illegal. For this reason, it may be easier to bring an action for same-sex harassment under these state or local laws where sexual orientation may have played a role in the harassment. An employment attorney can tell you whether your state or local laws bar sexual orientation discrimination and harassment.

Company Policies on Same-Sex Harassment

Whether they are required to by law or not, employers are increasingly including prohibitions on sexual orientation discrimination and harassment in their employment policies. Check your employee handbook or other workplace policies to see if such conduct is prohibited. If this conduct is prohibited, you have a right under these workplace policies to seek protection from same-sex harassment, whether it is based on sexual orientation or not.

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