When Is Same Sex Harassment Actionable?

The scenario is a common one-- in a construction, manufacturing, or other workplace where big, burly men are predominately employed, a "less manly" man is ridiculed and mocked.  The behavior typically takes the form of insults against the victim's feminine behaviors, and simulated sex acts such as "humping."  There is absolutely no question that such behavior is vile and  repugnant.  However, there is a big question whether the behavior constitutes unlawful harassment under Title VII or the California Fair Employment and Housing Act (FEHA).  Sometimes the situation is compounded by the victim's participation in the "gay" banter, calling his co-workers vulgar names.  

The Fifth Circuit Court of Appeals addressed the issue recently, trying to determine whether this type of crude behavior violated Title VII's prohibition against discrimination "because of sex."  (EEOC v Boh Brothers Construction Co, LLC, No. 11-30770 (5th Cir. Sept. 27, 2013.).  Referring to a very old Supreme Court case in which a female suffered discrimination because she was not sufficiently feminine, the 5th Circuit concluded that gender-stereotyping can constitute discrimination“because of sex” under Title VII.  In other words, if a man harasses a it her man because the victim does not meet the harasser's vision of masculinity, then sexual harassment has occurred.  

The issue is probable more clear-cut under California law.  We prohibit discrimination not only with respect to sex but also with respect to gender identity, gender expression and sexual orientation.  (Govt. Code section 12940.).  Moreover, sexual orientation "includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics."  (Govt. Code section 12926(n).). This seems to speak directly to the issue of same sex harassment. If it is based on the perception that a man is gay then the victim is protected against discrimination.  

This is only part of the analysis.  HR professionals must determine whether the basis of the behavior is based on sexual orientation or perceived orientation.  The HR professional must also determine if the behavior is severe or pervasive, and whether the  behavior was welcome.  For example, does the victim also participate in the banter, and even start the insulting banter?  

These are difficult questions to answer.  And much of what an HR professional does will be second guessed.  And in litigation people will lie.  Thus, the best course is to eliminate the coarse, crude behavior and language.  It eliminates costly lawsuits.  

Go ahead, walk out there and tell those big, burley men to keep their mouths shut.  I am sure they will listen to you!