Same-Sex Harassment Is Sexual Harassment: When Workplace “Jokes” Stop Being Funny

What Can Sexual Harassment Look Like?

Consider a lesbian going to work in a shop owned by another lesbian. The owner starts giving the employee hugs that feel like something more than just friendly. The employee tell the boss that she feels uncomfortable with the touching and wants to keep everything professional. Suddenly, her hours get cut back. Not as many shifts in a 

week. Is that sexual harassment? Sure sounds like it could be a pretty good case.

How about a gay man who keeps complimenting his straight, male coworker’s physique, asking him what gym he goes to, telling him how good his pants look. The straight guy politely but clearly tells his gay colleague that he’s not interested in discussing his workouts or his pants, and he just wants to do his job. The gay man accepts the criticism, but responds by continuing to tease the straight guy with exaggerated, 

“joking” flattery. Is this sexual harassment? Again, it has all the marks of a

legitimate case.

But what about this one:

Three coworkers. All male. Two straight, one gay. For some reason, one starts picking on the gay one, calling him “sissy,” or “queer,” or “fa--ot.” The victim tries not to let it bother him, but the bully is relentless. The homophobic slurs keep coming. “Homo.” “Girly-boy.” The second straight guy complains to the supervisor, saying the teasing is getting out of control, interfering with his ability to do his job. The supervisor says, “You 

need to stop being such a queen and get along with your coworkers. It’s just the way guys talk to each other around here.” The bully continues to insult and pick on his victim, but also starts attacking the one who complained, targeting him for abuse for being a “snitch” and a “queer-lover” who’s “just another homo.” Is this sexual harassment?

Well, as anyone who’s ever been a teenage boy will tell you, guys sometimes do talk to each other like that. But guys often do a lot of things that don’t belong in the workplace. Homophobic slurs are definitely one of them. 

Obviously, the gay man is being subjected to sexual orientation harassment and has a strong case under the Fair Employment and Housing Act (“FEHA”). But so does the straight man who stood up in his defense.

Past Harassment Cases

In the 2014 case of Taylor v. Nabors Drilling, a California court ruled that a heterosexual male has a sexual harassment claim under FEHA when his sexuality is under attack, even if the attacks aren’t motivated by sexual desire or interest. The use of homophobic slurs to belittle a person are grounds for a sexual harassment claim, regardless of whether the target is gay or straight or somewhere else on the sexuality continuum. 

In 2010, another court ruled in the case of Thompson v. City of Monrovia that a person need not be a member of a protected class to receive FEHA’s protection if he or she is targeted for “association with or advocacy on behalf of protected employees.” So by speaking up for his gay colleague, the straight man receives the benefit of FEHA.

And what about the supervisor’s behavior? Rather than trying to solve the problem, he only made it worse, and committed an act of sexual harassment himself. 

When confronted with a complaint about harassment or discrimination, bosses have a duty to investigate, and if necessary, intervene on behalf of the victim. In this scenario, the supervisor dismisses the complaint out of hand, slurs the victim, and sends him back to his harasser, who has somehow learned about the complaint and is now retaliating. Let’s take a deeper look at these facts:

• Calling the victim a “queen” may be an isolated incident, but in the context of the case, it’s a very hostile act. California is just one of several jurisdictions that consider harassment by a supervisor to be far more serious than harassment by a colleague. As one federal court put it, “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.”
• A “boys will be boys” attitude toward sexual harassment is unacceptable in any workplace, even when “it’s just the way guys talk to each other around here.” The law requires the employer to make the workplace a tolerable place for everyone, not just those who are willing to play along with whatever bad behavior has been condoned.
• By failing to keep the complaint confidential and allowing the bully to target the straight victim, the supervisor has failed to prevent harassment and retaliation. An employer has a duty to take all reasonable steps to keep the workplace safe for people who make complaints about FEHA violations.

The ultimate question is whether the straight man has grounds for a case of sexual harassment based on the bullying targeting him personally with homophobic slurs. In California, the law responds to that question with another question: How would a reasonable person in the victim’s demographic group feel about it? Would the average straight male in his community feel insulted and harassed by the anti-gay epithets? If so, then that is another strong case of sexual harassment. 

Looking at these different scenarios, we can see many different ways that bad behavior crosses the line from merely unseemly to unlawful. Sexual harassment on the job takes many different forms, and it’s not always what we would expect. But as society’s attitudes towards sex, sexuality, and workers’ rights have changed, the law has adapted—slowly but surely—to make us all safer and more comfortable in our workplace. 

Employee Law Group is On Your Side

If you feel you’ve been harassed at work based on your sex or sexuality, call our experienced employment attorneys at Employee Law Group. We have more than 30 years’ experience helping workers like you vindicate their rights and be compensated for the harm done by offensive sexual misconduct at work. 

You need to know what steps to take, right away. Like collecting evidence to back up your claims, making complaints in writing, identifying potential witnesses, dealing with HR, seeking psychological help if necessary, leaving the job if the harassment is too much to bear, seeking your remedy without filing a lawsuit, or taking that important step if necessary to get the justice that you deserve. 

We offer a free consultation to help you determine your best path forward. You have rights. We’re here to help you fight for them.