When one pictures sexual harassment in the workplace, the picture of a male employee harassing his female coworker usually comes to mind. But as we have discussed, sexual harassment can also occur between members of the same sex. Even if the conduct is not based on sexual desire between one member of the same sex towards another, jokes and pranks that take on a sexual character can still constitute illegal same-sex sexual harassment.
Such a scenario recently formed the basis of a lawsuit by a Michigan man named David Hylko towards his employer, U.S. Steel, and his male co-worker, John Hemphill, whom he claimed sexual harassed him. Hemphill trained Hylko, and the two men worked closely together. Hylko claimed that Hemphill regularly asked him about his sex life. He also claimed that Hemphill grabbed his butt on two occasions, saying that he had a “nice firm ass.” He even claimed that Hemphill grabbed his crotch in an elevator.
Hylko eventually told his boss about this behavior, which led to Hemphill being suspended, demoted, and forced to go through leadership training and work in a different part of the factory from Hylko. Despite this, Hylko still resigned, claiming that he worried Hemphill would retaliate against him.
Hylko then filed a lawsuit against Hemphill and U.S. Steel. However, the trial court dismissed U.S. Steel from the lawsuit, a decision which the appellate court affirmed earlier this month. The court held that in order for an employer to be held liable for sexual harassment, a supervisor must have committed the harassment, or the company must have failed to adequately respond to the harassment. The court found that neither of those facts existed here, as Hemphill was not Hylko’s supervisor, and the company did not fail to adequately respond to the harassment.
This case illustrates the need for sexual harassment training, especially for supervisors. Many employees may consider sexual jokes with other guys to be lighthearted goofing off. As this case demonstrates, that is not always true. Sexual discussion or conduct of any kind can constitute sexual harassment, and employees and supervisors, especially, should be discouraged from engaging in it.
We recommend that employers conduct sexual harassment training periodically. Contact me if you would like a review of your sexual harassment policy or training.
