E3: Same Sex Sexual Harassment in the Workplace

Thom and Kathleen Jennings discuss an often overlooked form of sexual harassment in the workplace, same-sex sexual harassment. Thom shares a story of the time he was the victim of unwanted touching, and Kathleen discusses a same-sex harassment case that she successfully defended for her client.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in her popular Cover, your Assets blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:35):
And welcome to the Cover Your Assets podcast. This is episode three

Kathleen Jennings (00:41):
And we're already on three. Thom,

Thom Jennings (00:43):
We are already on three. And in case you haven't met us before, we are your hosts. I am Thom Jennings and my sister is indeed Kathleen Jennings. And Kathleen as people will notice in the show notes, is an appointment law attorney. So our topics are related to employment law, and this week we came up with a topic that I have some personal experience with, and I think as the workplace evolves, this is an issue that maybe has come up in the last, what would you say, Kathleen? How many years,

Kathleen Jennings (01:17):
Thom? I think the issue's always been there, but now there are more laws that cover it

Thom Jennings (01:25):
And the topic is sexual harassment, but specifically same sex sexual harassment. And the reason that we distinguish the same sex sexual harassment from heterosexual sexual harassment is because as you said, there's, well, as you kind of hinted at, I believe that the laws have changed within the last, I don't know, 10 or 15 years because at one point, sexual harassment laws only covered male to female contact, female to male. But I, I would say as it's evolved, I mean, would you've been in practice for how many years now?

Kathleen Jennings (02:00):
A lot

Thom Jennings (02:01):
Have

Kathleen Jennings (02:01):
You over 30 years.

Thom Jennings (02:03):
So I mean, the typical sexual harassment case I'm assuming is going to be male to female female to male is probably rarer, and then same sex would be after that. Is that a, is that a fair assessment, at least on your, with your personal experience in dealing with these types of cases?

Kathleen Jennings (02:20):
I would say that the majority of cases are still cases involving a woman, accusing a man of some kind of sexual harassment. However, I have experienced, not personally, but on the legal side of defending employers cases involving a woman being accused. In fact, I have one pending right now, and even same sex sexual harassment. So I, I think now we recognize that anybody can commit sexual harassment and anybody can be a victim of sexual harassment and, and even more, you know, now we have gender is not an absolute concept, so we also have non-binary folks in the workplace. So gender isn't as important in some of these cases. It's just a matter of what kind of conduct we're looking at. And if somebody is, is making another person uncomfortable in the workplace, that's when we start have to, we we need to take action or the employer needs to take action.

Thom Jennings (03:28):
And, and, you know, the topic of sexual harassment is so broad. So I think it's important that we, that we just let people know that this specific episode will be a narrow focus on the same sex sexual harassment and these other forms of sexual harassment or interactions, I guess is maybe the better terminology. We certainly can, can discuss at a later date. But let's talk about the specifics related to same sex sexual harassment and maybe I don't know. Why don't we begin with, you could maybe discuss how same sex sexual harassment is similar to the typical stereotypical male, you know, being accused by a female.

Kathleen Jennings (04:12):
Well, I think Thom, like I said before, what we look at now is the conduct. What type of conduct is being committed in the workplace, what kinds of words, what kinds of, is there, is there unwanted touching? Some of the conduct we look at now also falls under the category of bullying. It may not rise to the level of sexual harassment, but it may constitute bullying, harassment, or sexual harassment is a legal definition and a legal conclusion. So when we look at the conduct, we compare it to the case law and determine whether this does, the conduct does in fact rise to the level of sexual harassment, regardless of who is committing it and regardless of who the victim is, it hasn't always been that way. And I think you have a story back in the day of some same sex sexual harassment that maybe wasn't taken as seriously as it should have been at the time.

Thom Jennings (05:17):
Yeah, it, and in fact, we've discussed this you know, in a personal setting or whatnot, but back in, it was, it was a long time ago. We're talking 1995, so that's that's man, 25, 26 years ago now. Well, 27. Anyhow, I was working in a factory, and I'll name the business because they're no longer in, in operation, but it was a company called Altron. And I I was in charge of d doing these these high pressure rollers for commercial copiers. I mean, it, it's not something that that's very specialized and whatnot, but the important thing is, is it was really a factory setting. So the crew that I worked with, all males male supervisor, and he had a male supervisor. And we had a gentleman that we worked with who was from Laos, and he referred a friend of his for a job.

Thom Jennings (06:09):
And that person was hired. I only mentioned the ethnicities because this gen, this friend of his did not speak English fluently. So there was already a bit of a communication gap between the two of us. Well, men being men, they decided that it would be funny to put this guy up to grabbing my butt on a regular basis. And I, I mean, I was married at the time and I had a wedding ring and you know, kids and the whole nine yards. So I wasn't, I mean, there was nothing that I was doing to promote his advances. And I don't e and to this day, I honestly don't know if this was necessarily sexual in nature as much as it was people in the workplace kind of trying to have a bit of fun with it either way. And I, and I would, would you say that would kind of fall in the gray area of bullying and sexual harassment? Although I think the unwanted touching would certainly warrant sexual harassment.

Kathleen Jennings (07:05):
I think the unwanted touching, especially on that part of your body, if you had complained about that to your employer, your employer should have responded to that in the, in the correct manner of responding to any complaint of alleged sexual harassment.

Thom Jennings (07:21):
Yeah, and it was, so we had a crew of, I think it was about four or five, just to kind of give you an idea of the, the setups there. So there were, there were jobs that we were doing, as I mentioned, we were, we were painting, we're using Teflon paint similar to what you would see on a frying pan. So while you're standing in a, a paint booth and you'd have these Tyvek suits on, I mean, you look like something out of that scene at ET where everybody's walking through and, and just covered, because you're dealing with this toxic substance. And so I'm kind of positioned in that station, it's very difficult for me to move. I've gotta pay attention to what I'm doing. And while I was there, they would send him up, you know, he'd grabbed my butt and then the guys would be standing in on the outside room laughing because they, oh look, you know, we got Thom. And this went on for quite some time. And I originally,

Kathleen Jennings (08:06):
So did you complain about it to anybody at the, at the company?

Thom Jennings (08:10):
Well, I originally complained to my immediate supervisor, the supervisor of, of the shift. And he was actually kind of in on it, so he just thought the whole thing was funny and thought that I was overblowing it. And my boss, who was actually the person who oversaw the entire department, happened to be at the time my closest friend <laugh>. So it put him in kind an awkward position, and I explained to him what was going on. So then he went to our HR rep, and then the HR rep called me in and sat me down and said we're aware of this situation that's going on, but there's really nothing that we can do about it because it's male to male and the, we don't necessarily have to address it because that, in terms of sexual harassment that's not covered. We can certainly talk to the individual, but I, and again, I don't know in retrospect if maybe that was the HR person trying to mitigate the circumstance and maybe, maybe discourage me from pursuing it further, which I never did because the action stopped, thank goodness.

Thom Jennings (09:14):
But I just remember at the time being very struck thinking that, oh, you know, if this was a female employee that there would've been some disciplinary issues that came up. But since it was a guy, again, I think it kind of goes back to the stereotype typing the nineties too, that this is just kind of a bunch of guys in a locker room. You know, I don't know if you've ever heard stories of wrestling teams, you know, that play around in the shower and do crazy things like that. So it's, or even, you know, guys that pat themselves on the butt during a sporting event, those actions, at least at that time weren't necessarily seen as sexual by nature. And in my case a actually this guy, in addition would blow kisses at mean stuff at the encouragement of the other guys because it just, and, and, and I wanna wanna mention the fact that in no way, shape or form, am I homophobic. I've, I have no problem with someone's sexual preference, but if a female was doing the same thing to me, I would be just as uncomfortable because that's a married guy, <laugh>, you know, it's not

Kathleen Jennings (10:19):
Like, well, and, and if, you know, and even put it another way, if you were a female and he was doing that to you, I would hope that your employer would see that as pretty obvious sexual harassment. You know, you would have the unwanted touching of an area that's considered sexual. And then the blowing the kisses is, is a type of unwanted attention that's not appropriate in the workplace. And in your case, it was certainly unwelcome, which is one of the elements of sexual harassment. So it would've been an easier call. And back then, before the Supreme Court issued some rulings where they extended the definition of sex to same sex, there was a time when Title seven, which prohibits sexual harassment, didn't actually cover harassment by someone of the same sex or didn't literally cover it. And so it sounds like your employer took that very literally as well and didn't come to your aid as they should have. Now nowadays, you would've had a really good case if that kept going on. You had complained about it, the supervisor was in on it. You would've had a great case against that employer.

Thom Jennings (11:44):
Yeah, and, and, and again, it, you know, my case, I think as an employee that wasn't necessarily that I was thinking along those lines, like cases, I was just, I just wanted it to stop. And I think that maybe there's, you know, employers, again, I I'm assuming they have to be very cognizant of these types of things that are going on in the workplace and training programs are, are, are a good source of prevention. I mean, as much as we think today, maybe it's a little cringe worthy that the supervisor was in on it, but I mean, they were in on it. And it's, it's, it's almost bizarre to think that a supervisor could be so irresponsible that they would allow this to happen. But maybe at the time, again, it was just that thought that it wasn't addressed, it wasn't a situation that put them in any, you know, liability situation. But as an employer, I assume you're gonna have to really make sure that your supervisors know that if there's anything like that, that maybe wasn't considered sexual harassment. And to go back to the, the scenario where I said, okay, so it's a bunch of guys working a late shift and they're all slapping each other on the butt, cuz that's what you do at a sporting event. The supervisor, I would assume this day and age should probably address that and make sure that that's not happening as well.

Kathleen Jennings (13:01):
Absolutely. And employers should conduct regular supervisory training so that their supervisors are able to recognize and prevent this type of conduct in the workplace. The fact that a supervisor is in on the harassment or knows about it and does nothing to stop it enhances the liability or potential liability to the company. So supervisors, it's, it's especially important that they are trained regularly and that they understand that they should not tolerate any harassment in the workplace by anyone, against anyone. And part of the challenge nowadays is training supervisors to recognize it. And, and the same sex sexual harassment is one of the areas that they need to be trained to recognize. Also, in that same vein with L B G T Q rights transgender harassment, something as simple as if someone asks for certain pronouns to be used, you need to respect that and the supervisor needs to make sure that the other employees in the workplace respect that. And if they don't and continue to call a transgender employee by the wrong pronouns, that could become a type of sexual harassment.

Thom Jennings (14:27):
And, and you know, I I, I think we've touched on this as well. Another element of this that is extremely important is, you know, I mentioned the fact that this happened back in 1995 or thereabouts. The laws have changed and laws do change in the workplace on a regular basis. So if you've had a supervisor in, in a factory, which probably is not of the realm of possibilities, that has still still worked there since, before this law has changed. It's crucial that supervisors receive training on how laws have changed in these different nuances so that they can't address these situations. Cuz like you said, I mean, if if this had happened last year I probably would be talking to another attorney, not you. And I would've had a, a very strong case of sexual harassment harassment to, to sue the employer and then, and the employer would be in a situation where their assets are exposed to, to kind of coin the phrase of, of what the show was all about

Kathleen Jennings (15:26):
Just because you had your assets grabbed.

Thom Jennings (15:29):
This is true, yes, <laugh>. But, but yeah, I, and it, and it's interesting cause this is what, 26, 27 years later and it's an incident that really has still stuck with me because the, just because of the response from the human resources individual who just said, ah, there's really nothing we could do with it because the law doesn't cover it. Which I, I think kind of, I mean, I hope that this question makes some sense to you and, and maybe you can address it, but in a situation where not even in this specific scenario, but other scenarios where things are going on in the workplace that maybe aren't necessarily illegal by definition, but cross an ethical boundary or anything like that. How do you think HR professionals should address that? I mean, to me, I felt this is how I felt at the time.

Thom Jennings (16:16):
And, and correct me if, if I'm wrong, I felt like the, the sole concern on their end was can I sue them or not? It wasn't, oh, you're getting, you're getting harassed. You know, we don't accept this in the workplace. It was more like, yeah, you're getting harassed we'll talk to the guy, but I just want to kind of let you know that yeah, you don't have a case against us because we've looked up the law and that's really our number one concern. And you know, and in all honesty, I wound up believing that employer not long afterwards because I was uncomfortable working there.

Kathleen Jennings (16:47):
And that's, that's what employers need to be mindful of. Even if you don't have harassment or you ha even if the conduct doesn't rise to the level of harassment, we still have the concept now bullying, or if you have a work environment that makes people uncomfortable and you don't do anything about it, you are probably going to be faced with higher turnover, which results in higher labor costs because you're constantly recruiting and training new employees. And it will probably impact the morale of the people working there because maybe they're not comfortable, or maybe there were some folks uncomfortable for you, but were afraid to say something and they have to be wondering, am I going to be next?

Thom Jennings (17:39):
And how would that scenario, I mean, how would you counsel a human resources professional to handle that situation today if it were to happen?

Kathleen Jennings (17:52):
Well, today, if you reported that kind of conduct, what the human resources person should have done is immediately commence an investigation. Now investigation is relative to the severity and just how widespread the potential harassment is. In this case, it would've been a good idea for the human resources person to get a statement from you, get a statement from the fellow that was grabbing your assets, and then also talk to the other people in the workplace, find out what they saw and what they heard. And if after talking to everybody, the human resource manager determines that, yes, in fact this employee was grabbing your assets, then that employee would need to be disciplined with the ultimate goal of making sure that it doesn't happen again.

Thom Jennings (18:48):
Alright. And we are at about the 18 minute mark. And so let's start with well, let's conclude with, I should say, some cases maybe that come to mind for you that dealt with any of the issues that arose in the scenario that I presented you.

Kathleen Jennings (19:07):
Well, I did have a case probably about the same length of time ago, involving a woman who claimed that her female manager was sexually harassing her in the workplace, and the female manager was in fact a lesbian, probably still is if she's still around. And it was widely known she was out. And this was, you know, probably over 20 years ago. And this woman who made the complaint, she filed an e o c charge, and then she filed a lawsuit. And I took her deposition and I asked her, as I always do in these types of cases, you know, tell me about each and every incident of harassment. And this woman proceeds to tell me about how her female manager told her that she was going to turn her into a lesbian so that she, the female manager, could get a toaster. This is no joke, she said this under oath. So it turned out after I talked to more people in the workplace that the plaintiff was really covering up an affair with a man to her husband. And she was telling her husband that the reason she was not coming home on time was because this manager, the female manager, was working her late and harassing her and trying to turn her into a lesbian rather than tell the husband the truth that she was in fact having an affair with another dude.

Thom Jennings (20:52):
A I mean, but I did the, did the case, I mean, what was the ultimate outcome of the case?

Kathleen Jennings (20:57):
The case was ultimately we got it dismissed on summary judgment because she just didn't have enough evidence of any actual harassment. And I, it was my sense that what this woman was trying to do was trying to play on people's biases against people that are L G T Q

Thom Jennings (21:17):
I I. And I guess the part that I ki I still scratch my head about, and I'm sure people who are listening to this podcast are going, what's like, what is the significance of the toaster? I I don't even understand why that came up in the depo or deposition unless it was some kind of red herring. I mean, it just seems to me like a bizarre statement, you know, like a, a toaster, I mean, I get it if it was maybe a car or a nice sound system or something, but that's just such a random item to include in a deposition on a sexual harassment case.

Kathleen Jennings (21:47):
Well, I think there used to be a time when people claimed that lesbians were, I, and I think it was a joke that they were trying to, to turn as we'll say non lesbians into lesbians in order to gain a toaster. Like it was some joke somewhere that this woman must have seen or heard or I, I don't know. But it certainly told me that she was making up the whole story.

Thom Jennings (22:15):
Yeah, and I, I I, I mean it, and I guess the the sad part is, is I'm assuming because your services were retained, even though this was the result of a woman having an extramarital affair, that it, it costs the employer some money just to have to defend this case.

Kathleen Jennings (22:33):
It did. And also the manager who was accused was an excellent employee. I was a very impressed with her. But it was very upsetting to her too. What, what plaintiff stone understand. I think sometimes when they bring these cases, yes, maybe they're upset about something, but when you start accusing your managers, your supervisors, and when they're really vindico vindictive, they will name them in the lawsuit. That's, that's hard for that individual as well to have to deal with and have hanging over their heads, especially in this case where it was really based on what I felt was this plaintiff's bias against h homosexual people. And so it was, it was ridiculous.

Thom Jennings (23:25):
Well, let's let's summarize everything here. So we've, we've kind of covered a lot of ground today and initially, I mean the really, the key takeaways that, that I heard today had to do with the laws regarding same sex sexual harassment for the most part, it's going to be dealt with the exact same way that is going to be dealt with in heterosexual sexual harassment. Make sure that you're

Kathleen Jennings (23:50):
All harassment should be dealt with in the same way, or, or all complaints of harassment, regardless of who makes them. And regardless of who is accused should be handled in the same way.

Thom Jennings (24:03):
And, and this, it, it's, it's backed up by law, but even if it wasn't, I mean, ultimately if you've, you've gotta deal with situations with your employer employees because as you mentioned, all those other things that could happen, it's a, it's about employee morale and all those types of things. The other key piece that I kind of heard, and then maybe you can talk to this a little bit more in our summary is, is training. Make sure that your supervisors are well versed on what is considered, you know, unwanted touching. I think the, that locker room scenario, I don't think it's an unreal one where you have guys in the workplace that are kind of, I don't know what they call that, is it slapping or backs slapping or whatever, but

Kathleen Jennings (24:45):
I had one with the passing of the piece where the guys would jump up and hit chest

Thom Jennings (24:51):
And, and that's, you know, physical context as we said, maybe somebody comes into the workplace and that's something that they're uncomfortable with. That's, that's, and and again, those are the types of things that supervisors have to be made aware of. And then human resource professionals they should monitor situations to make sure this kind of stuff isn't going on. Because again, if it goes on for months and months now, this is one thing we didn't necessarily touch on, but I think it was a huge component of it, is the shift that I was working on was the overnight shift. And typically in a lot of places the overnight shift, you don't have an HR manager on site, there's not a lot of management kind of walking around, and you can have a crew of people that are really in the wild, wild west. So maybe you need to also advise employers that it's a good idea to kind of check in on your late night staff to make sure that there's not some kind of craziness going on.

Kathleen Jennings (25:42):
Absolutely. And let me throw one more monkey wrench into this. Thom, what about the situation where you have an employee who has a religious objection to homosexuality or someone who is going through who is transgender?

Thom Jennings (26:00):
Yeah, well, and

Kathleen Jennings (26:02):
And those, those come up. Yeah.

Thom Jennings (26:05):
And those are great topics. Obviously we can, we can expand upon those at a, at a later date as well. Well, I I personally enjoy, I thought this was a great episode. I'm hopefully that our listeners found some information out there that's extremely useful. So what's the best way to contact you for your services? And again, I want to make sure that we let everybody know that this isn't all about if something bad happens, you hire an attorney you need to hire an attorney beforehand so that you don't have to pay a lot of money for an attorney if you don't deal with situations proactively.

Kathleen Jennings (26:41):
I agree. And there's, there's a lot, lot of training and review of policies that we can do in advance to hopefully prevent one of these lawsuits from being filed against your company. I can be reached in my email address, kj j whim law.com. You'll see them see that in the show notes or on my blog, cover your assets.

Thom Jennings (27:03):
Excellent. And you can subscribe to that blog. You can subscribe to the podcast, podcast available on all of your major podcast networks. And if there's a topic that somebody would like us to address, we would absolutely love to hear from you. And sis, I enjoyed this one, bro. Thanks so much for being with me this week and we will see you next week on the Cover Your Assets Podcast.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.