Sexual Harassment by Employees of the Same Sex

When most people envision sexual harassment, they picture a harasser and victim of the opposite sex—typically a male harasser and female victim. Ohio employees should know, however, that the employment discrimination laws also protect them from sexual harassment by someone of the same sex.

In 1998, in a case called Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held that sexual harassment is illegal, even if the victim and harasser are the same sex. The Court explained there are three circumstances under which “same-sex” sexual harassment is illegal:

1. If a harasser who is the same sex as the victim is motivated by sexual desire towards the victim.
2. If the harasser was motivated by general hostility towards the presence of people of the victim’s sex in the workplace—for example, the presence of women in a factory.
3. If the harasser treats members of the opposite sex better than members of the victim’s sex.

As with most issues of employment law, these are complicated legal and factual questions. The ultimate issue with same-sex harassment is whether members of the victim’s sex are subjected to less favorable terms and conditions of employment than members of the opposite sex, regardless of the sex of the harasser.

While the holding in Oncale is important, the Court’s opinion has significance beyond just same-sex sexual harassment cases. The opinion contains a famous quote from Justice Scalia that Title VII (the federal employment discrimination law dealing with sex discrimination) “is not a general civility code.” That is a point worth emphasizing. Not all teasing, offhand jokes, or horseplay in the workplace—whether between people of the same or opposite sex—is considered illegal sexual harassment. Only when the conduct effectively alters the employee’s terms and conditions of employment will it be illegal. That is not always an easy question to answer, and courts will look at the frequency, severity, and nature of the conduct, as well as how it affected the victim to find an answer.

Same-sex sexual harassment claims are comparatively rare as Cleveland employment discrimination claims go. Certainly they are more rare than sexual harassment claims involving a male harasser and female victim. Still, same-sex sexual harassment can be illegal sex discrimination under certain circumstances. If you think you might be a victim (of any type of workplace harassment), contact an experienced Cleveland employment discrimination attorney right away.