Is Same-Sex Sexual Harassment Illegal?

Readers of The Workplace Report know that we strongly encourage all employers to create and enforce sexual harassment policies. Sexual harassment is one of the most common complaints of employment discrimination in the workplace; the EEOC and related state agencies consistently receive over 12,000 complaints of sexual harassment a year. Employers must protect themselves by taking proactive measures to prevent sexual harassment in the workplace, and that starts with creating and enforcing a comprehensive sexual harassment policy.

However, when creating a sexual harassment policy, don’t forget that sexual harassment is not limited to a man making unwelcome sexual advances toward a woman. Sexual harassment between people of the same gender is also illegal.

Courts holds that sexual harassment occurs when: 1) an employee is subjected to unwelcome harassment; 2) the harassment is of a sexual nature or based on an employee’s gender; 3) the harassment is severe and pervasive, creating a hostile work environment. Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964, which prohibits, among other things, workplace discrimination against someone due to gender.

While many people assume that sexual harassment involves a male supervisor making unwelcome sexual advances to a female subordinate, courts take a much broader view, holding that women can sexually harass men, and that someone can sexually harass another person of the same sex. Moreover, the person committing the sexual harassment does not have to be homosexual. Courts have held sexual harassment can occur when the victim of the harassment is homosexual, and the person engaging in the harassment is motivated by homophobia.

Recently, the Equal Employment Opportunity Commission sued Wells Fargo Bank, claiming that the bank violated Title VII when it allowed a female manager to create a sexually hostile environment for female employees. The female employees claimed that the manager regularly made graphic sexual comments and gestures toward them, and touched and grabbed them in a sexual manner. Since the bank was aware of this behavior yet failed to stop it, the EEOC claims that it is liable for creating a hostile work environment.

Ultimately, employers must remember anyone in the workplace can sexually harass anyone else. Therefore, sexual harassment policies should make clear that harassment is illegal regardless of the gender of the people involved. Moreover, sexual harassment policies should clearly forbid harassment based on a person’s sexual orientation. Consult an attorney for a review of your sexual harassment policy.