With all the issues that employers have to worry about these days, whether one heterosexual male called another heterosexual male a derogatory name that rhymes with "Rick" seems of little importance. You should keep in mind, however, that same-sex name-calling and horseplay may constitute unlawful workplace harassment.
Boys Will Be Boys
As portrayed in movies and television ― pretty much accurately, by the way ― men can be rather juvenile in the company of other men. They curse at each other and use vulgar language when telling jokes. They punch each other in the arm and kick each other in the rear end. And flatulence . . . well, you get the point. To quote the popular saying: "Men are idiots." Or at least they can act that way at times.
Typically, however, the behavior occurs in private, usually among friends, and out of sight of females or strangers. But what happens when it finds its way into the workplace? If coworkers, including male coworkers, are uncomfortable with that kind of conduct, "boys being boys" may become a bigger issue and lead to significant exposure for an employer.
Supreme Court Speaks Up
Before 1998, many courts around the country held that a male couldn't file a claim of sexual harassment against another male under any circumstances. All that changed, though, when the U.S. Supreme Court issued its landmark ruling in the Oncale v. Sundowner Offshore Services, Inc. case, holding that males could file sexual harassment claims based on the actions of other males under Title VII of the Civil Rights Act of 1964.
The Supreme Court identified three avenues male employees can follow to file a successful sexual harassment claim based on the actions of another man. Specifically, a man can succeed in a same-sex harassment case if the alleged harassment (1) takes place because of homosexual desire, (2) is motivated by general hostility toward men, or (3) occurs as a result of men and women being treated differently in a mixed-sex workplace.
The Supreme Court cautioned, however, that the law doesn't reach the "genuine innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." An employee filing a same-sex harassment claim still has to demonstrate that any alleged discrimination occurred "because of sex."
Likewise, courts have to look at the context of the action and use common sense so they don't create liability for "male-on-male horseplay" or other impolite conduct that doesn't constitute discrimination because of sex. The Supreme Court reminded us that Title VII is not a general civility code. In other words, people can still act in a rude and juvenile manner toward each other without creating employer liability.
Same-Sex Claims On The Rise
Despite those limitations, men have become more active in pursuing harassment claims. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment charges by men have increased from nine percent of all sexual harassment charges in 1992 to 15.4 percent in 2006 (the last year for which statistics are available).
Moreover, the EEOC has had increasing success in settling claims of same-sex harassment ― obtaining a $1.8 million settlement from a health care company in Florida, a $1.9 million settlement against a meatpacking plant in Minnesota, and a $500,000 settlement against an automobile dealership in Colorado. Interestingly, however, there have been very few cases of male-on-male harassment that have made it to the verdict stage and even fewer to survive the review of an appellate court.
In particular, the Fifth, Sixth (which covers Tennessee), and Seventh U.S. Circuit Courts of Appeal have been very dismissive of same-sex harassment claims, even in cases involving vile language and/or physical assault. For example, in reversing a verdict for a same-sex harassment case, the Sixth Circuit lampooned the district court's basis for the verdict (which was that the alleged harasser treated men and women differently). With "apologies to Mother Goose," the Sixth Circuit, in the EEOC v. Harbert-Yeargin, Inc., decision, stated:
Georgie Pordgie Pudding and Pie
Goosed the men and made them cry;
Upon the women he laid no hand[,]
So it cost his employer 300 grand.
The Sixth Circuit ultimately held that the case had come too close to the line established by the Supreme Court in the Oncale case and asked, "What's next ― towel[-]snapping in the locker room?" Since that decision, the Sixth Circuit has dismissed several other claims of same-sex harassment by males.
Unfortunately for employers, not all judges share the opinion of the Sixth Circuit. In the majority of circuits, no cases regarding same-sex harassment between heterosexual men have been decided. Thus, men who are uncomfortable with sexual comments or antics from other men are free to resort to legal action when their complaints fall on deaf ears.
Furthermore, many trial court judges are unwilling to preemptively dismiss same-sex harassment claims and prefer to let a jury decide. That makes it extremely difficult for employers to ultimately prevail in a same-sex harassment dispute. Often, they are faced with the unfortunate but reality-based decision of settling claims rather than spending even more to defend their response to the sophomoric behavior of employees.
Bottom Line
You should take complaints of harassment seriously ― no matter who makes them. If a male employee complains about the actions of another male employee, you should investigate and respond in the same manner you would respond to a female's complaint about a male or vice versa. Don't dismiss complaints of idiotic behavior as "boys being boys," especially if the conduct has any sexual connotation.
You should also review your harassment policies to ensure that they apply to all actions "based on sex," including actions between men. Finally, adopt policies against crude language and horseplay. If you effectively discipline employees who engage in inappropriate or boorish behavior, there will be less opportunity for one male employee to sexually harass another male employee.
Quite simply, the crude conversations and immature actions that men engage in when they are away from women have no place in the modern workplace. Failing to recognize that fact puts you at risk for expensive and embarrassing claims of same- sex harassment from your male employees.
This article is posted with permission from Tennessee Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.