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By Roy Whitehead, Jr., Kenneth Griffin, and Pamela Spikes

Most employers are still struggling to deal with man-woman sexual harassment matters. A recent Supreme Court decision is certain to spawn a recognition of same sex, man-man or woman-woman, sexual harassment claims under Title VII of the Civil Rights Act. Prior to this case, that clearly signals a widespread future filing of same-sex sexual harassment lawsuits, it was thought in several circuits that an action under Title VII was not an appropriate remedy for same-sex harassment. In particular, it was thought that the focus of sexual harassment claims was on the offensive nature of sexual activity to the opposite gender rather than to the same gender.

Title VII of the Civil Rights Act prohibits an employer from discriminating with respect to an employee's compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Early sexual harassment claims had to involve a quid pro quo for sexual favors, like a woman having to provide sexual favors as a condition for a raise or promotion. Then, in a 1986 case, Meritor Savings Bank v. Vinson, 477 U.S. 57, the Supreme Court recognized that unwelcome sexual advances can create a hostile work environment claim under Title VII. This hostile environment cause of action, typically involving women who complain about a hostile sexual work environment created by men, has led to most of the escalation in Title VII suits the past few years. A finding of hostile environment depends on whether the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment and create an abusive working environment, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

On to the Supreme Court

In the Fifth Circuit case of Oncale v. Sundowner Offshore Services, 83 F. 3d 118 (1996), Oncale claimed that a male supervisor and two male co-workers on an offshore oil rig repeatedly subjected him to offensive sexual touching in the shower and threatened him with rape. The trial court dismissed the claim because it believed same-sex harassment was not covered under Title VII. Although it sounded sympathetic to Oncale's plight, the 5th Circuit Court of Appeals concurred, citing Garcia v. Elf Atochem, 28 F.3d 446 (1994) for the binding precedent that same-sex harassment is not covered. The Supreme Court granted certiorari and decided on March 4, 1998, that same-sex sexual harassment claims are triable under Title VII [Oncale v. Sundowner, No.96-568].

Justice Scalia wrote that Title VII prohibits, "discrimination because of sex in the terms or conditions of employment," and "our holding is that this includes sexual harassment of any kind." He responded to concerns that a recognition of same-sex harassment would transform Title VII into an unmanageable code of civility for the often rough-and-tumble workplace by stating that the conduct complained of must be serious enough to constitute "discrimination" because of sex and be so objectively offensive as to alter the "conditions" of employment. Citing Harris v. Forklift Systems [510 U.S. 17,21 (1993)], Justice Scalia said that even crude conduct, for example, male on male horseplay would not be actionable unless it is so objectively offensive to a reasonable person as to alter the conditions of employment.

The citation to Harris is the key to understanding this holding because in Harris, Justice Ginsburg set a benchmark for an understandable definition of hostile environment sexual harassment when she said that unwelcome conduct that prevented an employee from "focusing" on the job is sufficient to establish a sexually hostile environment. Clearly, the gross behavior and threats of rape that Oncale was subjected to affected his ability to focus on his job.

Scalia emphasized that the objective severity of the harassment must be measured from the perspective of a reasonable person considering "all the circumstances" including the social context in which the particular behavior occurs. This approach would seem to allow for different behavior standards for men and women. The justice related, for example, that a working environment would not be pervasively abusive if a football coach smacks a player on the buttocks on the playing field. On the other hand, the same behavior could reasonably be considered unwelcome and abusive if it occurred in the office. He said common sense, and appreciation of the social context should enable employers and the courts to distinguish between simply roughhousing and teasing among members of the same sex, and conduct which a reasonable person would find severely hostile or abusive.

Managing Same-Sex Claims

Given the foregoing, and the fact that employers must now deal with same-sex claims in all jurisdictions, what steps can the employer take to protect against liability for such claims? First, employers must recognize that harassing behaviors that alter the working conditions and effect the employee's ability to focus on the job are actionable whether the actors are same-sex or opposite-sex. Secondly, there is considerable helpful guidance in traditional opposite-sex sexual harassment EEOC guidance and case law. The EEOC says that the existence of a sexual harassment policy and grievance procedure is relevant and will effect the employer's liability [29 C.F.R. Section 1604 (F)]. Thus, the existence of a reasonable policy and grievance procedure for employees may be regarded by the EEOC as a defense to employer liability. A careful reading of the Meritor sexual harassment case and Barret v. Omaha National Bank, 726 F.2d 427, indicate that when an employer (1) has a reasonable policy that is (2) known by the employees under which the employer (3) quickly and fairly investigates and (4) swiftly acts on complaints, the employer is (5) shielded from liability.

The following actions will help management meet its responsibilities to employees and provide a defense to same-sex sexual harassment claims:

    * The employer should have a strong well-articulated policy concerning sexually offensive activity. The policy should clearly indicate that both opposite-sex and same-sex harassment are covered.

    * All employees should be informed of and given a copy of the policy.

    * A complaint procedure should be devised that allows employees to complain to someone other than the harasser.

    * The employer should swiftly take appropriate remedial action by fairly investigating, taking strong action when necessary, protecting the victim from retaliation, and restoring any lost job benefits in a timely manner.

The critical factor line is that an employer has an affirmative duty to take immediate action to remedy these distasteful situations and that an honest effort to comply with that affirmative duty is a recognized employer defense.

What to Do

Employers in all jurisdictions are, or soon will be, dealing with same-sex claims. Because the EEOC and the courts recognize that a fair and effective sexual harassment policy is a defense to an employee claim against the employer for a hostile environment claim, the wise course of action is to establish a policy outlining management techniques like those described above to deal with the employer liability problem. But that should not be the end of the matter. There ought to be, and there are, numerous civil and criminal sanctions against the utterly despicable conduct described in these cases. No rational employer would knowingly tolerate such conduct because it clearly interferes with the employee's job performance. *

Roy Whitehead, Jr., JD, LLM, is an associate professor of business law, Kenneth Griffin, DBA, a professor of information systems, and Pamela Spikes, PhD, CPA, an associate professor of accounting at The University of Central Arkansas.

Michael Goldstein, CPA
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