EEOC Finds Growing Trend In Male Reports of Sexual Harassment

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Sexually explicit comments. Inappropriate touching. Retaliatory action. These are the allegations you would expect in sexual harassment cases filed by women. But now, a growing number of men are filing actions over the same purported conduct.

There is a growing trend of men filing sexual harassment charges, the Equal Employment Opportunity Commission reported. In fiscal year 2006, the EEOC found that 15% of sexual harassment charges reported to the agency were filed by men - the highest percentage ever reported.

Though the statistics do not account for the gender of the alleged harasser, Jeanne Szromba, an attorney with the EEOC's Chicago office, said it is rare for men to file sexual harassment charges against female supervisors or co-workers.

She believes the growing number of male claims involve harassment for not fitting the male stereotype or sexual propositions from co-workers that go "way over the line."

She said male sexual harassment cases must fight the stereotype that men are not as devastated by harassment as women.

"When you hear about what a man is doing to a woman, everyone assumes it is being done because of sex. If there is touching or propositioning, you don't have to spend a lot of time proving why he is doing it," Szromba said. "The concern [with a male harassment case] is to counter the idea that a man could have taken care of this on his own - 'why didn't he just beat the guy up' kind of attitude. 'How much could it have bothered him? He's a guy, he's tough.'"

Timothy P. Van Dyck, co-chair of the labor and employment practice at Edwards Angell Palmer & Dodge LLP, said that in his 20 years of practicing employment law he has only worked on five male harassment cases - all of which were filed within the last four years.

He agreed with Szromba that most male sexual harassment claims involve heterosexual men and claims of "horseplay that crosses the line of conduct that clearly shouldn't be happening in the workplace."

Van Dyck said that while the legal standard for harassment against men and women is the same, men may still have a greater burden to prove their cases under Title VII.

"Title VII was initially created to protect classes of individuals that need protection," Van Dyck said. "Men practically face an uphill battle because they are not in a category or class of people which has historically needed protection."

A recent case Szromba handled against FedEx Corp. on behalf of two former couriers at the shipping company's South Holland, Ill., facility showed how men face different challenges in harassment suits.

The suit accused the company of failing to prevent a male supervisor's sexual harassment of the couriers in violation of Title VII. The parties reached a settlement in April in which FedEx paid the alleged victims a total of $275,000 and agreed to train its employees regarding Title VIIsexual harassment policies.

In the case, David Marcotte claimed that beginning in December 1999 he was sexually harassed by his supervisor Daren McGill. Marcotte claimed that McGill told him to "bend over, big boy," rubbed his rear end and other body parts several times and often spoke to him about masturbation and pornography.

Marcotte claimed that McGill brought playing cards to work depicting naked men engaged in sexual acts and asked if he liked or had ever done those acts. He said his complaints about McGill to his manager and other supervisors went unheeded and that he eventually had his hours cut back because of his complaints.

Another courier, Robert Kerouac, also claimed he was improperly touched by McGill and said FedEx did nothing to stop the behavior.

Both couriers believed that McGill was sexually interested in Marcotte.

McGill denied the employees' insistence that he was gay and claimed that he only touched their arms and shoulders, as he did with female employees. Court precedent allows men to file sexual harassment claims against men without regard to the sexual orientation of the participants.

The U.S. Supreme Court's 1996 decision in Oncale v. Sundowner Offshore Services Inc. is considered the landmark decision in affirming that men are also protected from sexual harassment by other men in the workplace under Title VII.

Andre Phillip LaPlace, who represented plaintiff Joseph Oncale in the case, said that while the decision was momentous, "spin doctors" have used the decision as a weapon to dismiss male sexual harassment claims that did not show "outrageous conduct" comparable to the conduct in his case.

"The irony of the Sundowner decision is that more cases are dismissed because of it," said LaPlace, a solo practitioner based in Baton Rouge, La. "Most people thought it was a big watershed decision, but I had to fight the case all the way down to the trial court level, where the defendants maintained no harassment."

The Oncale/Sundowner case was eventually settled.

In the FedEx case, the shipping company said that according to the Supreme Court decision, the EEOC had to prove that the alleged victims were harassed because of their gender.

FedEx said the case failed the standard proofs laid out by the Supreme Court for same-sex harassment, including that the harasser had a sexual desire toward members of his own gender; that the harasser was motivated by general hostility toward members of the same sex; or that the harasser treated men and women differently.

FedEx said McGill was not gay and did not harbor general hostility toward men. The company also said that he treated men and women similarly - for instance, he rubbed the shoulders of men and women, and the deck of cards featuring naked men that he showed to Marcotte was being held for a female courier.

The Supreme Court also ruled in Oncale that harassment had to be severe or pervasive and that it was crucial "that courts and juries do not mistake ordinary socializing in the workplace - such as male-on-male horseplay or inter-sexual flirtation - for discriminatory 'conditions of employment.'"

FedEx claimed in its motion for summary judgment that the Oncale case set the "baseline" for the type of conduct that would meet the severe or pervasive behavior test.

In the Supreme Court case, Oncale was employed on an offshore rig and filed a same-sex harassment claim against his supervisor and two co-workers. The lawsuit alleged that the co-workers restrained him while Oncale's supervisor placed his penis on Oncale's neck; that he was threatened with homosexual rape; and that the supervisor pushed a bar of soap into his anus while a co-worker restrained him as he was showering.

FedEx claimed that McGill never touched anything more than a shoulder or leg, that his comments were nothing "more overt than locker room banter that can be heard nightly on any cable channel program," and that, unlike Oncale, the plaintiffs were still able to perform their duties.

The EEOC refuted FedEx's argument as biased against the plaintiff for being male.

"It is hard to imagine that FedEx would make a similar argument in a more traditional sexual harassment case, suggesting that a woman who was not threatened with rape or whose supervisor did not penetrate her with a foreign object could not have been sexually harassed," the EEOC said in response to the motion. "The suggestion is preposterous and offensive and is most certainly not the law."

Judge Harold A. Baker of the Central District of Illinois denied FedEx's summary judgment motion in December, saying that the EEOC had provided sufficient facts and arguments to allow a jury to decide the case.

Oncale was also cited in United HealthCare of Florida Inc.'s defense of a male harassment suit filed by the EEOC that involved an alleged harasser who is openly gay.

In that case, which was settled for $1.8 million this month, Daniel Wolansky accused William Condon of harassment by talking about his sexual exploits with other men, rubbing Wolansky's back and shoulders and occasionally asking for a hug or kiss.

United HealthCare claimed in its summary judgment motion that the EEOC never showed that Condon, a regional vice president, made explicit or implicit proposals of sexual activity as noted in the Oncale case but merely speculated that he desired Wolansky, a senior account executive who is straight.

Even if the actions were inappropriate, United HealthCare said, the actions were not sexual harassment because Condon treated both sexes similarly.

The health insurer said that Condon treated both genders similarly by referring to both men and women as "honey" and "sweetie" and hugging female employees as well as male employees. He was fired, the company said, after a female employee complained that Condon touched her rear end.

Judge K. Michael Moore of the Southern District of Florida dismissed United HealthCare's summary judgment motion. He said the arguments should be heard by a jury.

Cheryl Cooper, an attorney with the EEOC's Miami office who handled the case, said the lawsuit showed that male-on-male harassment cases are not the exclusive territory of lower-level employees.

"What stands out is that you had top-level management, in terms of the person being harassed was a top salesperson and the person accused of harassment was a regional vice president," Cooper said. "This type of harassment can occur even in the highest levels of top management."

Szromba said the EEOC's cases could help battle stereotypes regarding harassment claims filed by men.

"When the EEOC files these cases and settles publicly, it puts companies on alert that this is a problem and is not a joke," Szromba said. "It is no more of a joke than when women go through it."

Carla Rozycki, co-chair of Jenner & Block LLP's labor and employment practice, does not believe the rise in male harassment claims is due to an increase in employer misconduct. She said the rise is due to an increase in legal rights and awareness regarding sexual harassment behavior for which men may take legal action.

"I do think the whole idea of sexual stereotyping and what is masculine enough - we are seeing more of those types of sexual stereotyping cases and bullying cases increasing," Rozycki said.

Rozycki said a 1989 Supreme Court decision in Price Waterhouse v. Hopkins also opened the door to more male harassment claims by ruling that sexual stereotyping is prohibited by Title VII.

In the case, Anne Hopkins was denied partnership at the firm for allegedly appearing too masculine. The Supreme Court held that Title VII prohibited discrimination or harassment based on sexual stereotyping and thus also covered a man who is discriminated against for presenting himself as not manly or too effeminate.

The ruling has been used by homosexuals and transgender plaintiffs to invoke Title VII, which does not explicitly protect their classes from discrimination.

Rozycki noted an August 2004 decision in Smith v. City of Salem by the U.S. Court of Appeals for the Sixth Circuit that applied the Supreme Court ruling.

The Circuit found that Jimmie L. Smith, a lieutenant with the city's fire department who considers himself transsexual, could sue the city, which he accused of plotting to terminate his employment because he began to look more feminine.

Van Dyck said he believes the uptick in male harassment cases is due to the Oncale case and a greater willingness by men to report harassment as more employees deem workplace behavior improper and illegal.

He said he counsels clients about revising sexual harassment policies to prohibit same-sex harassment if they have not done so already, noting that horseplay and locker room antics should be guarded against.

"There is a fine line between joking around and crossing the line into harassment," Van Dyck said. "The goal for management is to make sure they do not get close to that line."

He said that from his experience, settlements of male sexual harassment cases tend to be smaller than settlements for female cases since most female cases involve more "predatory" harassment.

Van Dyck said men and other classes of employees may find further avenues to file harassment cases with pending anti-bullying legislation in at least 10 states. That legislation would forgo Title VII and ban any kind of bullying regardless of one's class.

"It is a real dangerous trend," Van Dyck said. "It is very difficult, if not impossible, to define what bullying is. There are so many different standards, each workplace has its own unique environment with their own standards for what is and isn't socially acceptable."

For instance, he said proposed legislation in Connecticut would prohibit "abusive conduct" in the workplace, which is defined as conduct that causes material impairment to an employee's physical or mental health.

"I think the proposed statutory language is incredibly broad and vague and has the potential for all kinds of abuse," Van Dyck said.

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

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Source: Ron Zapata, Male Harassment Cases Present New Challenges, Law360, (Oct. 03, 2007)