by Freelance Attorney
We hear about this topic all the time during the #MeToo movement. Sexual harassment in the workplace has become center stage for good reason. Gone are the days where men and women could make inappropriate comments without consequence. This is the general sentiment and predominantly the narrative when sexual harassment is mentioned in the media. Most of the coverage is with regard to male employees harassing female employees.
Can a Male Employee Be The Victim of Sexual Harassment?
It is sad that this question has to be asked; however, it is a question that comes up when I am asked about comments made from female employees to male employees. The short answer is – absolutely! In an April 2018 article posted by the Washington Post, men account for nearly 1 in 5 complaints of workplace sexual harassment. This can range from inappropriate, unwelcome touching to sly, offhand comments. Sexual harassment is not a stand alone cause of action, so from a legal perspective, a claim would have to be brought under a gender discrimination, retaliation, or another appropriate cause of action. For advice on this route, we recommend seeking the advice of a seasoned employment law attorney.
What Can Constitute Sexual Harassment?
Many individuals feel that for sexual harassment to constitute termination, it must be severe. This theory is severely misguided; however, it is important to look at your respective employer’s policy regarding sexual harassment. A terminable offense does not have to be an illegal action. In all likelihood, the most minimal of comments could rise to the level of termination especially in a zero-tolerance culture.
For example, let’s take a look at a comment from a female employee to a male employee that some would consider potentially inappropriate. The female employee calls the male employee ugly. Is this sexual harassment? Does it rise to the level of a terminable offense? According to many harassment policies, likely so. Visit: http://dcrambler.com
It is likely that the sexual harassment policy in your employee handbook has the definition of sexual harassment after basic introduction similar to the one below:
Sexual harassment is unwelcome conduct of a sexual nature that is persistent or offensive and interferes with an employee’s job performance or creates an intimidating, hostile or offensive work environment. Sexual harassment is defined by the federal Equal Employment Opportunity Commission as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when, for example: a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.
Now, let’s analyze the female employee’s comment to the male against that policy. Putting aside any legal analysis, on its face calling another employee ugly is a direct comment about their physical appearance which is sexual in nature – either positive or negative. It is likely unwelcome and offensive as it is a derogatory comment and the comment is likely meant to cause harm to the person to whom the comment was directed – in this scenario, a male employee. As such, the female employee has likely engaged in sexual harassment. Assuming that the company in question has a zero-tolerance policy for sexual harassment, the female employee should be terminated in accordance with company policy.
No matter your personal feelings towards this scenario, it is important to realize that words matter, and it does not take much to rise to a terminable offense – especially if there is a complaint. In at-will employment states, where an employee may be terminated for any reason or no reason at all, an employee needs to watch what they say and do in order to remain employed.