Fired For 'Acting Like A Man': Sexual Harassment Cases You Don't See Everyday (Hopefully)

Plus cases of women harassing men, and men harassing each other.

Sexual Harassment Female Initiated woman sexually harassing manMy last two posts dealt with sexual harassment – one with a description of workplace harassment in all of its facets, and the other with strange cases.

Today’s post is about cases that are noteworthy simply for being cases that you might not hear much about – but indeed exist – all too frequently.

Fired For “Being A Pit Bull”

Kathianne Boniello of the New York Post just reported on an arbitrator who awarded a female marketing exec $41 million, finding that she was fired “for being too aggressive, too emotional, too profane — basically, for ‘acting like a man.’”

Perhaps not strictly a harassment case, but I include it anyway.

The arbitrator held that her male colleagues “criticized behavior from her that they would accept from a man to run her out of the company.  It is clear from [the company’s] actions and collective attitude that a woman is not permitted to act like a man. … Obviously, being a ‘pit bull’ — having a ‘personality trait of aggressiveness’ — was not only considered to be a positive approach and an expectation, it was also part of [the company’s] culture for men. [Plaintiff] was the only one faulted for it.”

Most sexual harassment cases involve the targeting of female employees who are vulnerable or appear vulnerable, while this case involved the targeting of a successful, aggressive woman – who was targeted for that reason.

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Singled out for “acting like a man” – misogyny?

Male Employees Harassed By Female Employees

Another thing you don’t often see – but it nonetheless exists more than is reported – is male employees being sexually harassed by female employees.

Sexual harassment – “the term by default has always been associated with women, and men who undergo similar ordeals remain invisible. Men feel hesitant to come forward to talk about it, fearing the stigma associated with masculine vulnerability or ‘weakness.’ … a survey conducted across Indian cities in 2010 showed that 19% of the men from a sample of 527 said they faced some form of sexual harassment at the workplace.

This from a Huffington Post article from India:

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Our male-dominated society refuses to acknowledge the sexual harassment of men, and this ignorance—born of gender bias—perpetuates the secrecy and the problem. The issue is neglected to such an extent that even the Indian legal system does not recognize men as possible victims of sexual harassment.

The U.S. legal system indeed recognizes men as possible sexual harassment victims (i.e., Title VII), but aside from that, the quotes above could easily be from here.  Or anywhere.  (To those interested, I recommend an excellent treatise on the topic, “Workplace Bullying and Harassment – New Developments In International Law (2017),” by Ellen Pinkos Cobb.)

And while bullying is not necessarily sexual harassment, I would suggest that sexual harassment is a subset of bullying.  And according to an article in the Australian Men’s Health Week Spotlight, “Research conducted by Beyond Blue and the University of Wollongong has found half of all Australian workers experience bullying on the job. And take one guess who was found to be most at risk… young males, with limited support at work.”

Likely a good number of these bullying victims were sexually harassed.

Male-On-Male Sexual Harassment

A federal appeals court decision last year illustrates this problem. Plaintiff alleged that a fellow employee repeatedly touched, slapped or grabbed him so hard “that his tail was actually sore,” “hunched him,” and rubbed his crotch against him. Eventually plaintiff was forced to quit, suffering from post-traumatic stress disorder.

A management write-up described the situation as “horseplay-sexual harassment.”

Horseplay? Hardly. But this word would never be used if this were not a male-on-male encounter.

The Court cited Oncale, and the Supreme Court’s caution against finding that “ordinary socializing,” such as “male-on-male horseplay” violates Title VII.  (Could the company management have actually read Oncale?  Nah – probably just a lawyer-inserted phrase in its handbook.) Nonetheless, it held that the company was liable for its failure to adequately address the situation; its inaction was “unreasonable.”

What Sexual Harassment Might Not Be

In what may be somewhat of an outlier decision, a federal court in upstate New York held recently, according to Susan Swihart of BNA, that a police officer who bombarded his ex-girlfriend, also on the police force, with “incessant, volatile messages” did not violate Title VII.

She noted that “Despite his constant barrage of text messages, voicemails, and messages over social media—which mainly consisted of profane and vicious verbal attacks, though they were interspersed with pleas for her to return to him—the judge found that the police officer’s motivation was his disappointment in their failed relationship, not the female police officer’s gender.”

The Court found that “None of his communications, however, permit the inference that his harassment of Plaintiff was motivated by her sex.”

Hmm.

“An Unenforced Policy Is Tantamount To Having No Policy At All”

I always advise employers to maintain a top-down, zero-tolerance anti-harassment policy. But one company ignored its own such policy.

A restaurant franchisee recently settled an EEOC lawsuit on behalf of 15 female employees, who accused it of “permitting sexual conversations and jokes, and allowing managers to request sexual favors, make sexual comments, and subject the employees to unwelcome touching.  The company allegedly did not respond to the employees’ complaints ‘in a prompt and appropriate manner.’”

The takeaway, which is applicable to all of the above situations, is a comment by an EEOC attorney:  “When an employer allows its managers to abuse its female employees in these ways and allows a sexually hostile work environment to persist, it is obviously not enforcing its anti-harassment policy. An unenforced policy is tantamount to having no policy at all.”

Earlier:


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.