In fall 1991, Joseph Oncale was a roustabout in an eight-man crew working in the Gulf of Mexico for Sundowner Offshore Services.
Coworkers repeatedly sexually taunted and humiliated the 21-year-old Louisianan. One of his supervisors sodomized him with a bar of soap. Others held him down, and another threatened him with rape.
When Oncale complained to the firm, the company’s safety compliance officer called him a name suggesting he was gay. Not long after, he quit, fearing he eventually would be raped.
He asked that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” Then he sued Sundowner.
At the time, federal courts didn’t recognize that men were protected by the same sexual harassment laws that shielded women. But with this Louisiana case, the Supreme Court made a landmark decision that they do.
Two decades later, the number of men nationwide filing sexual harassment charges has doubled; last year, men filed a record 16% of all complaints to the Equal Employment Opportunity Commission.
Their share was even higher in Louisiana: Men were the accusers in 20% of the 200 cases on file with the EEOC last year. Five years ago, 14% involved male victims. This change is notable in that sexual harassment complaints as a whole have fallen nearly 17% over the past decade.
“While some people may think sexual harassment of male employees is a joke, the issue is real,” says David Grinberg, an EEOC spokesperson. “We are seeing more of it, and such conduct has serious legal consequences for employers.”
For men, the stigma of claiming to be a victim of sexual harassment clearly isn’t what it used to be.
It started with the 1994 film Disclosure starring Demi Moore and Michael Douglas, which portrayed a sexually aggressive female boss preying on her male subordinate, highlighting female-on-male harassment. Then came the Supreme Court’s 1998 ruling in the Oncale case, proclaiming same-sex harassment illegal.
During the same period, two relevant cultural phenomena occurred: Women increasingly moved up to management and supervisory ranks, and the stigma associated with homosexuality began to decline.
“In the past, especially in strong male work environments where it was almost like a fraternity atmosphere, if you told, you weren’t a part of the group,” says Scott Huffstetler, a Baton Rouge labor and employment attorney with Kean Miller who also saw the other side of sexual harassment cases while clerking for U.S. District Judge Frank Polozola.
“You even risked being picked on for not being considered masculine enough, or being called gay. A lot of that stigma has been removed, and with that, more men are willing to come forward with these sorts of claims.”
Education is likely the biggest factor. Many employers now have written policies and training that define appropriate behavior, as well as comprehensive procedures for reporting and investigating any claims.
“I think employers are doing a much better job of educating the workforce,” says Kyle Ferachi, an attorney for McGlinchey Stafford who defends corporations against harassment claims.
“And, whereas the older generation might just brush something off and say it’s not a big deal, this younger generation of employees is much better educated about harassment. They aren’t as reserved about coming out and making a complaint, because they know it’s wrong.”
There are those who believe the recession might also play a role. The trend is that litigation rises when the economy falters; the thinking is that when jobs are scarce, unemployed people tend to sue in hopes of replacing lost income. It’s also tougher for men who are terminated to find another job.
From September 2008 to January 2010, 4.4 million American men lost their jobs, compared to 2.3 million women, according to the Bureau of Labor. And men’s harassment claims did rise in states with higher unemployment rates, and dipped in states with lower ones.
“We’re seeing fewer claims because of the economy,” Ferachi says. “People are holding on to their jobs; they want to remain employed. So we’re not seeing the frivolous claims we might have seen before.”
But Louisiana seems to be the exception to that trend. Last year, the state had one of the lowest unemployment rates in the nation, yet the percentage of sexual harassment claims filed by men rose nearly four percentage points from the previous year.
“Whereas in the past, the employee solution to the hostile work environment might have been to just leave,” Huffstetler says, “there aren’t as many options out there right now.”
The law recognizes two types of sexual harassment. Quid pro quo harassment is committed by a manager or supervisor. It happens when an employee is required to submit to sex or sexual conduct as a condition of employment with the result of an adverse employment action, such as demotion, firing or unwanted reassignment. In such cases, a company must prove that the employment action would have occurred regardless of the harassment.
The other is known as “hostile environment,” in which offensive behavior in the workplace is severe and pervasive, and an employer fails to take prompt remedial action. It can include crude language, touching, jokes or pictures considered offensive to a reasonable person. It also must be driven by the target’s gender, and be unwelcome.
For example, telling one explicit joke to a group of male and female employees doesn’t necessarily constitute harassment, but repeatedly bombarding a male employee with comments—and targeting him because of his gender—might do so.
While court cases over the past two decades have better defined what constitutes sexual harassment, many employees still have misconceptions about the law.
Bill Corbett, a professor at LSU’s Paul M. Hebert Law Center who specializes in employment law, says the court sets a very high standard for proving that harassment occurred.
“Some people think that anything that’s said or done that refers to sex—like a joke that’s told that makes sexual references—is sexual harassment, and that’s just not the case,” he says. “It’s not an easily satisfied standard. I’ve seen court cases where the behavior is pretty pervasive, and the courts say it doesn’t meet the standards. It takes conduct that rises to a fairly egregious level.”
One federal judge has likened the process of setting the standard in harassment cases to “nailing a jellyfish to the wall.”
The Supreme Court struggled with the issue in Harris vs. Forklift Systems. In that 1993 case, the justices said courts must look at all of the circumstances: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
Nationwide, nearly half of the sexual harassment complaints don’t have enough evidence showing that harassment occurred for the EEOC to recommend any enforcement action. In Louisiana, a “very, very small percentage” of complaints ever make it to court, says Loyce Pierce-Wright, executive director of the Louisiana Commission on Human Rights, an arm of the EEOC.
“One of the greater misconceptions that we see is that when people do report sexual harassment to us, they feel like we should immediately accept what they are saying as the end-all truth,” says Leah Raby, the commission’s investigator. “We tell them we understand their plight, but we have to be impartial when investigating their complaint.”
Companies can take a number of steps to minimize their liability for sexual harassment:
• Make sure there is a sexual harassment policy that’s up-to-date and uniformly enforced. Ensure employees are educated in prohibited behavior, and make it clear that harassment won’t be tolerated in the workplace. Emphasize confidentiality and that employees won’t face retaliation for reporting harassment.
• Provide several avenues for reporting complaints, so employees aren’t expected to report harassment to the very supervisor who is doing the harassing. Some firms have even gone so far as to hire an independent outside firm to hear and investigate their complaints.
• Conduct a prompt and full investigation and take appropriate action. Your best defense is that you exercised reasonable care to correct any harassing behavior, and that the employee failed to take advantage of any preventative or corrective actions. “A proper workplace investigation is the key to defending claims,” Ferachi says.
• Take all claims seriously. “Handle it seriously and launch a full investigation,” Ferachi says.
• Don’t retaliate against the employee reporting the harassment, even if they’re not the actual victim. Huffstetler says he has seen a rise in retaliation cases for employees who might have participated in the investigation of a sexual harassment case.
• Even if you’re innocent, going to court isn’t always the best idea. “These cases are hinged on credibility: It’s a true he-said, she-said situation,” Huffstetler says.
• Remember that sexual harassment can severely impact your bottom line. In May, Everdry Marketing & Management paid over $500,000 in a case involving harassment of teenage employees. Three years ago, an Illinois trucking firm was ordered to pay $1.1 million.
Ultimately, the best way to prevent sexual harassment is to foster a corporate culture that doesn’t tolerate that type of behavior.
“To the extent that a business can cultivate a culture of respect among their employees, there’s going to be less sexual harassment,” Corbett says. “I don’t have a magic formula for that, but if you have a message of respect, then if you treat other people with respect, sexual harassment doesn’t happen.”
