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.

“Sexting,” “Textual” Harassment On the Rise

Claims of “virtual” sexual harassment—-sexual harassment by email, text message, instant messaging, Facebook, smartphones and other technologies—-are surging.  For example:

• In April 2009, Central Michigan University paid $450,000 to settle a lawsuit brought by two female soccer players who accused their coach of sexually harassing them via text message and manipulating them into secret sexual relationships;
• In July 2009, a 22-year old Oregon woman sued LA Fitness after three of her managers texted her from a bar asking her for sex and identifying X-rated acts they would like to perform on her;
• In August 2009, a Hooters waitress in Fort Lauderdale, Florida sued the restaurant over explicit text messages and photos she received from her manager;
• A former World Wrestling Entertainment employee has filed a lawsuit in Connecticut alleging that she was sexually harassed by a married senior director who pursued her via late night text messages and phone calls; and
• In West Virginia, four Famous Dave’s waitresses sued the company after they received text messages from their supervisor asking for sexual favors.

Experts say the surge in virtual sexual harassment claims is largely a by-product of the informality that modern technology invites.  An employee might think twice before making an inappropriate sexual remark at, say, a corporate meeting.  But emails, texts and instant messages give employees a false sense of intimacy that can invite trouble.

Virtual sexual harassment also presents multiple challenges for employers.  First, many employers have outdated sexual harassment policies that do not specifically address this type of harassment.  The failure to adopt specific measures prohibiting this form of harassment could become problematic when an employer attempts to invoke its sexual harassment policy to defend against a harassment charge–particularly if the employer supplied the technology that enabled the sexual harassment to occur.  Second, virtual sexual harassment, in the form of texts, emails and the like, leaves an evidentiary footprint that other forms of harassment do not.  When it comes to virtual sexual harassment, forget “he said, she said”–the texts, emails and instant messages don’t lie.  And the deletion of pertinent electronic data—-whether voluntarily, involuntarily or pursuant to a document retention policy—-gives rise to concerns over spoliation of evidence.

To minimize concerns, employers should remind employees of their sexual harassment policies, making specific mention all forms of communications, including emails, texts, instant messages and so on.  Employers should also consider amending their sexual harassment policies to specifically prohibit “virtual” sexual harassment.