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Same Sex Harassment

Charles Peckham here on a hot button issue in Employment Law.

Neither Federal Law nor the Texas Labor Code prohibits discrimination based upon gender identification or gender preference.  Some Courts have come close however to interpreting the law to protect these.  This issue is before the 11th Circuit now, following on a watershed case in the 5th Circuit – the federal circuit that oversees Texas.

The US Supreme Court has ruled that same sex sexual harassment IS actionable in the 1998 case of Oncale v. Sundowner.

Since that time, there has been a question about whether the discrimination and harassment that took the form of accusations of homosexuality could that be considered sexual harassment, or the now non-prohibited gender preference discrimination.

In the 2012 case of Boh Brothers from the 5th Circuit, we have an answer that will likely last until the Congress expands the law to protect workers in the LGBT community.

Although the Boh Brothers court did not rule on this issue, it did say that use of epithets of the type commonly made toward homosexuals and simulation of homosexual sex acts would have suggested that the actions were based on sexual orientation that is not actionable, whereas use of words suggesting the male worker was effeminate or other physical or emotional characteristics would have indicated actionable gender stereotyping which the Court said IS actionable as gender discrimination.

To be actionable, harassment must be unwelcome and, viewed objectively, so severe or pervasive as to alter the conditions of one’s employment. Courts say that Title VII is not a general workplace civility code and that simple teasing, offhand comments, sporadic use of offensive language, and occasional gender-related jokes will not support a Title VII claim.

However, discriminatory intimidation, ridicule, or other verbal or physical conduct may be sufficiently extreme to do so.

In Boh Brothers, because the nature of the abuse was related to gender stereotyping, because the employee often complained of it and because it occurred several times a day for several months, the court upheld the jury verdict that it was unwelcome, severe, and pervasive.

So Boh Brothers opened the gates to gender stereotyping cases in the 5th circuit.

There are some other important takeaways.

Here the company had a boilerplate anti-discrimination policy, but it did not cover harassment, illustrate what conduct is impermissible, or make it clear that conduct need not be motivated by sexual desire to be illegal.  Therefore, if a company does not have a properly instructive policy and train their employees to that policy, they cannot as easily fall back on the policy to say they have protected their employees from discrimination.

Also in Boh Brothers, there was a clearly insufficient 20-minute investigation.  Boh Brothers tells us that a short and improperly handled investigation may not protect an employer from liability as it isn’t really designed to protect the employees.

SO, we know that

  1. Employers must seek to eradicate harassment (or any form of discrimination) involving gender stereotyping. Sex or gender discrimination does not have to be based on a prurient interest – sexual desire.
  1. Employers must have comprehensive, well-thought-out anti-discrimination/harassment policies that define and provide examples of illegal conduct, are communicated to employees, clarify how complaints are to be filed, and contain a sound resolution procedure. Then they must do more than post these policies on a wall and give lip service to enforcing them. Indeed, the Boh Brothers court stated that the company might have prevailed if had done more in this area.
  1. Employers must realize that courts are becoming less likely to listen to the excuse that the employees were just engaged in “horseplay”.
  1. Last, employers cannot afford to give short shrift to an allegation of gender stereotyping because they don’t want to have to deal with it, it sounds unrealistic, or the victim appears capable of handling it by him or herself; instead, employers must carefully and objectively investigate all complaints. Employers must also not punish the complaining employee, which happens far too often in cases.

I hope this update has been helpful!