MALE SEXUAL HARASSMENT CLAIMS ON THE RISE

The EEOC reports that over the last twelve years, the percentage of sexual harassment claims brought by men has doubled.  In 1990, complaints by men represented only 8 percent of all sexual harassment charges.  As of 2009, the figure stood at 16 percent.  And the percentage of male claims has continued to rise even as the overall number of sexual harassment complaints has declined. 

Most claims involve men harassing other men. The harassment usually takes the form of either unwelcome sexual advances or hostile activity directed at men who are perceived to be gay or too feminine for the work environment.  In 2009, men filed almost 2,000 of the 12,700 sexual harassment charges the EEOC received.

Hospitality employers have been involved in some of the higher profile  male sex harassment cases.  In November 2009, Cheesecake Factory paid $345,000.00 to six male employees who claimed they were repeatedly sexually harassed by kitchen staffers in a Phoenix restaurant.  And more recently, a group of male employees sued Fleming’s Prime Steakhouse and Wine alleging improper groping, fondling and touching by their supervisor.

“But I Wasn’t Talking About Her”: Eleventh Circuit Broadens Definition of Sexual Harassment

January 20, 2010–In Reeves v. C.H. Robinson Worldwide, Inc., the Eleventh Circuit Court of Appeals ruled en banc that sex-specific derogatory comments can constitute a hostile work environment, even if they are part of a generally accepted vulgar and offensive workplace atmosphere, and even if they are not directed at a specific female employee.

Before Reeves, courts in the Eleventh Circuit (which includes Georgia) generally rejected sexual harassment claims that were based upon a generally vulgar or offensive  workplace enviroment.  Title VII, as courts would often point out, is not a civility code.  Vulgar and offensive langauge or behavior–even if of a sexual nature–were not considered sexual harassment unless  directed at a specific employee .   Title VII requires proof of intent to discriminate based upon an employee’s sex, and where vulgar or offensive language or behavior was prevalent in the workplace, but not directed at any employee in particular, evidence of intent to discriminate was absent.

Reeves altered this general rule.  In Reeves, the Eleventh Circuit held that “a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.” In other words, the court held that generally vulgar or offensive language can give rise to an actionable sexual harassment claim if the language is directed at the plaintiff’s protected group (in this case, females)–even if  not directed at the plaintiff herself.  “It is enough to hear co-workers on a daily basis refer to female colleagues as ‘b*tches,’ ‘wh*res,’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way,” the court wrote  “The harasser need not close the circle with reference to the plaintiff specifically.”

The decision is probably best understood as a response to the shockingly toxic work environment that spawned it.  Ingrid Reeves worked  at shipping company C.H. Robinson for almost four years.  During that time, her male co-workers subjected her on a daily basis to extremely offensive gender-specific profanity–using terms like “b*tch,” “sl*t,” “wh*re,”  and “c*nt” in ordinary conversation.  Although the language was not directed specifically at Reeves, it was directed specifically at her gender.  Reeves complained first to her supervisor and then to  upper management but her complaints were ignored.  That, the Eleventh Circuit decided, was enough.

The decision arguably dispenses with “but I wasn’t talking about her” defense in Title VII harassment claims.  The facts in Reeves were so egregious, however, that it remains to be seen how broadly its holding is applied.  Nevertheless, the decision undeniably broadens Title VII–in the Eleventh Circuit at least–and should be considered a victory for victims of hostile work environment sexual harassment.

Outback Pays $19 Million to Settle Sex Bias Suit

On December 30, 2009, Outback Steakhouse announced that it would pay $19 million dollars to settle a class action sexual discrimination lawsuit brought by the United States Equal Employment Opportunity Commission (EEOC).  The EEOC filed the suit in September 2006 in Denver, Colorado. 

The EEOC claimed that Outback’s policies created a “glass ceiling,” which prevented women from advancing within the company.  The EEOC claimed that Outback denied women favorable job assignments–particularly kitchen management positions–which were required in order to obtain restaurant management positions. 

 Outback admitted no liability in the settlement, and claimed that it resolved the case because it “ultimately determined that settling . . . with funds provided entirely by insurance was preferable to the cost and distraction of further litigation.”  In addition to paying the $19 million dollars, the settlement agreement also requires Outback to implement various remedial measures, including an online application system for employees interested in managerial and other supervisory positions.