An employee feels he’s being harassed by a male co-worker. Apparently, their manager told him to work it out because they’re both “dudes.” How should we handle this situation?
Quick Answer
Title VII’s ban on sexual harassment includes a ban on harassment against members of the same sex. Other laws ban harassment based on characteristics other than sex, regardless of the sex of either party.
Legal Perspective
ReedSmith
Chicago, Illinois
Federal, state and local laws recognize and prohibit same-gender harassment in the workplace, meaning that harassment can occur between any individuals, regardless of their gender or sex, says employment attorneys Jill Vorobiev and Mallory McCarthy.
As such, employers are legally responsible for investigating and addressing concerns and allegations of same-gender harassment in the workplace. And, even if the harassment is not because of gender, the conduct may violate the employer’s non-harassment policies.
In this situation, both the employee’s reported concern and the manager’s reaction should be addressed. As to the former, HR should initiate a prompt and thorough investigation, which may include a review of relevant documents and communications and interviews of the involved employees, the manager and any identified witnesses. If the investigation results in findings of harassment, the employer should take prompt remedial action, which may include termination.
The employer should also address the manager’s reaction to the employee’s reported concern. Managers are held to a higher standard when it comes to reporting and addressing their employees’ reported concerns.
In this situation, the manager – rather than telling the employees to work it out between themselves – should have promptly reported the employee’s concern to HR. Consequently, the employer may consider disciplining the manager for failing to properly report the employee’s reported concern and verbally coaching the manager as to the proper steps in addressing this situation were it to occur in the future.
Relevant Case Law
Wasek v. Arrow Energy Services, Inc.
EEOC v. Boh Brothers Construction Co., LLC
HR Insight
PCC Medical Holdings
West Palm Beach, Florida
Title VII does not discriminate between same-sex or opposite-sex harassment, says HR Director Sue Schwartz. All complaints should be taken seriously and investigated by HR for any merit.
If any wrongdoing is found, then appropriate remedial action must be taken, and the employee who brought the complaint to the management needs to know that the situation was handled appropriately and that actions were put into place to ensure that it does not happen again. If the perpetrator continues to harass a co-worker, the same actions need to be taken regardless of the gender of the parties.
Piedmont Internal Medicine PC
Atlanta, Georgia
First, I would need to investigate to confirm the allegations, Director of HR Mary J. Barker-Phillips says. I would then handle this like any other harassment complaint. The sex of the parties should make no difference.
Gordy's Marine
Fontana-on-Geneva Lake, Wisconsin
I would talk to the person who came forward to find out exactly what happened, explains HR Manager Jaime Offutt. Depending on that, I’d take action accordingly. I would never tell an employee who was brave enough to come forward to work it out themselves.
The Cost of Noncompliance
Employer pays $50K to settle same-sex harassment claim
Who was involved: ABC Phones of North Carolina, d/b/a A Wireless, and a female employee who worked as a sales consultant at a branch in Lumberton, NC.
What happened: The employee was sexually harassed by a female colleague, according to the EEOC lawsuit. The suit asserted that the harassment included inappropriate touching and sexual comments. It further alleged that the victim reported the issues, but management failed to take action to stop them.
Result: The company paid $50,000 to the victim to end the lawsuit. Under the settlement, it was also required to:
- Conduct employee training.
- Post a notice informing employees about the company’s legal obligations under Title VII.
Info: ABC Phones of North Carolina to Pay $50,000 To Settle EEOC Same-Sex Harassment Lawsuit, 10/31/16.
Victim of same-sex harassment was fired after contacting police for help: Company pays $82K
Who was involved: Shelley’s Septic Tank and a former employee in Orlando, Florida.
What happened: The company’s male owner repeatedly made sexually charged comments to a male employee and also subjected the worker to unwanted touching, according to the EEOC’s lawsuit. The worker eventually reported the harassment to the local sheriff’s office in an attempt to end the harassment. Afterward, he was fired.
Result: The company agreed to pay $82,500 to the former worker. Under a three-year consent decree, it must also:
- Develop and distribute a written policy against discrimination.
- Conduct anti-discrimination training.
- Post a notice at the worksite about the lawsuit.
- Submit written reports twice a year to the EEOC.
Info: Shelley’s Septic Tank to Pay $82,500 to Settle EEOC Same-Sex Sexual Harassment and Retaliation Suit, 10/17/21.
Bank pays $290K to settle same-sex harassment claims
Who was involved: Wells Fargo Bank and four female bank tellers who worked at a branch in Reno, Nevada.
What happened: A female bank manager and another female employee subjected the four bank tellers to “graphic sexual comments, gestures and images,” according to the EEOC. Specifically, the harassment included inappropriate touching and regular admonishments that the tellers should “wear sexually provocative clothing to attract customers and to advance in the workplace,” the suit alleged. The women said they reported the harassment, but the company failed to intervene and stop it. The alleged harassment was so severe that one victim said she felt compelled to quit rather than endure the abuse.
Result: The company paid a total of $290,000 which was distributed to the four victims. It also agreed to:
- Provide annual anti-discrimination training.
- Issue a memo outlining the procedures for reporting harassment complaints.
- Follow up with employees who submitted reports of harassment to ensure that their complaints were resolved in a timely fashion.
- Submit periodic compliance reports to EEOC.
Info: Wells Fargo Settles EEOC Same-Sex Sexual Harassment Lawsuit for $290,000, 9/15/14.
Key Takeaways
- Title VII bans all sex-based harassment, including same-sex harassment.
- Other laws ban harassment based on other protected characteristics, such as disability or age, without regard to the sex of either party.
- To be unlawful, the harassment must be severe or pervasive enough to cause a reasonable person to consider it hostile, intimidating or abusive.
- Isolated incidents will not lead to legal liability unless they are extremely serious.
- Harassment may include, among other things, offensive jokes, physical assaults, intimidation and interference with work performance.
- Employers can avoid liability for a hostile work environment by acting quickly to stop the harassment.
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