Government Charges that Gay and Lesbian Employees Were Subjected to Hostile Work Environments Because of Their Sexual Orientation

The U.S. Equal Employment Opportunity Commission (EEOC) has filed two lawsuits alleging that gay and lesbian employees were subjected to sexual harassment and a hostile work environment.  These are the first sexual orientation discrimination lawsuits brought by the government under Title VII of the Civil Rights Act.

In one lawsuit against Scott Medical Health Center, the EEOC alleges that a gay male employee was subjected to a hostile work environment because of his sexual orientation.  The complaint alleges that the employee’s manager referred to him using anti-gay epithets and made other highly offensive comments about his sexuality and sex life.  The company allegedly failed to take any action after the employee complained.  Ultimately, the employee quit to avoid further harassment.

In the other lawsuit against IFCO Systems, the EEOC alleges that a lesbian employee was subjected to a hostile work environment because of her sexual orientation.  Her supervisor allegedly made comments about her appearance and sexual orientation, such as "I want to turn you back into a woman" and "You would look good in a dress."  The employee was fired shortly after she called an employee hotline to complain.

Title VII of the Civil Rights Act prohibits harassment in the workplace based on a person’s sex.  Until now, the government has only pursued lawsuits for harassment based on an employee’s gender.  It has not pursued discrimination or sexual harassment lawsuits based on an employee’s sexual orientation.

Last year, however, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination based on sex.  That was an administrative proceeding involving a government employee.  The new lawsuits have been filed in courts against private employers.  

The EEOC explained three rationales for finding that sexual orientation discrimination constitutes sex discrimination under Title VII.  First, sexual orientation discrimination is necessarily based on an employee’s sex, because sexual orientation as a concept cannot be understood without reference to sex.  Second, sexual orientation discrimination is based on the employee’s perceived non-compliance with sex stereotypes and gender norms, and employment decisions based on such stereotypes and norms have long been prohibited under Title VII.  Third, sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

The new lawsuits are significant because the EEOC is challenging the conduct of private employers in court.  The EEOC hopes that by bringing these lawsuits, courts will recognize that sexual orientation discrimination is a form of sex discrimination.

If you have faced harassment in the workplace because of your sex, sexual orientation or gender identity, you should consult with an experienced employment lawyer to understand and protect your rights.  To schedule a free and confidential consultation, call John Howley, Esq. at (212) 601-2728.

​Answers to Frequently Asked Questions About Sexual Harassment in the Workplace

What is the definition of sexual harassment?

Sexual harassment includes unwelcome sexual comments, advances, requests for sexual favors, and verbal or physical harassment of a sexual nature, including text messages, emails and the displaying of sexual images in the workplace.  Sexual harassment generally falls into one of two categories:

• Hostile work environment: When sexual comments, advances, or other conduct are so severe or pervasive that they interfere with your job performance, you may have a claim for sexual harassment based on a hostile work environment.  The harassment may be by a co-worker, a supervisor or manager, or even a customer or vendor who does not work for your company.
• Quid pro quo: When a supervisor, manager, or other person with more power than you makes sexual advances that impact on employment decisions such as a raise, promotion, job offer, or termination, you may have a claim for quid pro quo sexual harassment. 

What types of sexual harassment are illegal?

Illegal sexual harassment includes a wide range of conduct from sexual comments, to lewd jokes, to unwanted physical contact.  Some examples of sexual harassment include:

• Unwelcome sexual comments, invitations, and flirtation
• Unwanted physical contact, such as hugging, rubbing, touching, patting, or pinching
• Frequent leering, staring, or looking at someone with "elevator eyes" (that is, looking someone up and down)
• Sexually degrading language, sexual jokes, innuendos, or gestures
• Displaying sexually suggestive objects, pictures, videos, graffiti content
• Displaying or transmitting sexually suggestive electronic content, including inappropriate e-mails
• Sexually suggestive or insulting sounds, such as whistling and cat calls
• Asking about a person's sexual fantasies, sexual preferences, or sexual activities
• Commenting on a person's body, dress, appearance, gender, sexual relationships, or experience
• Repeatedly asking someone for a date after the person has expressed disinterest
• Conditioning a promotion, raise, or work assignment on sexual conduct
• Threatening or suggesting that your employment, wages, promotional opportunities, or other conditions of employment may be adversely affected by not submitting to sexual advances

How should I respond to sexual harassment?

First, do not blame yourself.  Sexual harassment is never the victim's fault.  Understand that you have rights and options.  Tell the harasser to stop, and report the conduct to your employer in writing.  Your employer must investigate and take remedial action.  Your employer is not allowed to fire, transfer, or otherwise retaliate against you for reporting sexual harassment.

Write down notes and make a record of what happened.  This can be as simple as going home, writing down what happened complete with names, places, dates and times, and telling a close family member or friend.  Continue to make notes if the conduct continues.  Keep those notes at home, not in your office or on your work computer.

You should also meet with an experienced sexual harassment lawyer to learn how to protect your rights.  Do this right away because there are strict deadlines if you want to file a claim.  You can schedule a free and confidential consultation by calling John Howley, Esq. at (212) 601-2728. 

How do I prove sexual harassment?

There are a number of ways to prove sexual harassment.  The evidence begins with what you saw and heard, and the testimony of any other witnesses.  Written records are also helpful, such as any notes you made at the time of the harassment, any written complaints to your employer, and emails or text messages from the harasser.

You may also use a smartphone to make audio or video recordings of the harassing conduct.  In New York and many other states, you are permitted to record your conversations with other people without telling them that they are being recorded.  But you are not permitted to leave a recording device in a room or attached to a phone and leave.  You must be a participant in the conversation in order to record it.  Consult with an experienced sexual harassment lawyer to get advice on how to gather evidence to support your case.

Where can I obtain more information about sexual harassment in the workplace?

Call John Howley, Esq. at (212) 601-2728 to schedule a free and confidential consultation.

​Sexual harassment can take many forms.  It includes unwelcome sexual advances, requests for sexual favors, and other physical or verbal harassment of a sexual nature.  Sexual harassment also includes offensive remarks about a person’s sex. 

Sexual harassment is against the law when it is so severe or frequent that it creates a hostile or offensive work environment.  Sexual harassment is also illegal when it results in an adverse employment action such as an employee being demoted, fired, denied training or denied promotion. 

The two categories of sexual harassment in the workplace are:

Quid Pro Quo Harassment occurs when the employee feels compelled to tolerate sexual harassment in order to keep his or her job or to get a raise or promotion.

Hostile Work Environment Harassment occurs when the conduct unreasonably alters or interferes with the employee's work performance, or creates an abusive, hostile or offensive work environment.

The laws that protect against sexual harassment apply regardless of gender or sexual orientation.  The harasser and the victim can be either a woman or a man.  The harasser and the victim can be the same gender.

The harasser may be an owner, executive, manager, supervisor, or even a co–worker.  In fact, the harasser does not have to be employed by the employer.  Under some circumstances, you may have a claim against your employer for sexual harassment by their customer or client.

If you have experienced sexual harassment in the workplace, then you should consult with an experienced employment lawyer immediately to protect your rights.  Your lawyer can help you file a claim, prepare your evidence, and protect you from unlawful retaliation.

Do not delay.  The time limits to file a sexual harassment claim are very short.

To schedule a free and confidential consultation, call John Howley, Esq. at (212) 601-2728.