Tag Archive: Sexual harassment

Male Sexual Harassment Victims

Most people associate sexual harassment with the idea of a man harassing a woman. We have been socialized to view males as the aggressor and  females as the victim; however, the reality is that anyone can be a victim of sexual harassment at the hands of anyone else. This is evident in the increasing number of sexual harassment claims that have been brought by male victims. According to the Equal Employment Opportunity Commission (EEOC), the number of males making claims has doubled in the past fifteen years. The reasons for this however, are deemed to be the result of many factors.

One major reason for this is that there is a social stigma placed on the idea of males as victims and even more so on the idea of males as victims of sexually-based crimes. The main premise is that “real” men are not sexually harassed. Furthermore, if they are, they can deal with it on their own rather than complain about it. Men who do seek the appropriate help can be easily viewed as weak, overly sensitive, and generally not masculine. This being so, the reason for the increase in males as victims in sexual harassment claims could be due to the fact that the amount of sexual harassment has not necessarily increased, but the social stigma associated with seeking help may have been altered, resulting in an increase in the reporting of sexual harassment. The fact that the first male victim sexual harassment case did not take place unless 1995  helps to validate this idea. In 1995,  the EEOC filed on behalf of Domino’s Pizza employee David Papa against his female boss, Beth Carrier. The EEOC claimed that Carrier engaged in various acts in the workplace including touching Papa’s neck, back and buttocks, asking him to engage in sex acts with her, and continually asking him to begin a romantic relationship together promising him a promotion if he complied. Six days after he confronted her asking her to stop the behavior, Carrier fired Papa despite a good work record, multiple promotions, and a recent “Manager of the Year” award. The court determined that males were a protected class and that Carrier’s actions are a violation of Title VII of the Civil Rights Act  of 1964 .

The 1998 US Supreme Court case Oncale v. Sundowner Offshore Services broke new ground on sexual harassment claims. Joseph Oncale worked on a Louisiana offshore oil rig. His co-workers and supervisors often teased him for not being “masculine enough” and eventually threated to sodomize him with various objects. The harassment culminated in Oncale’s sodomization with a bar of soap in front of his co-workers. As a result, the Supreme Court determined that same-sex sexual harassment not only exists but is also a violation of Title VII.

Another factor for the increase in male claims may stem from the increase in training programs and company policies which urge people to seek the help of their human resource departments in order to resolve sexual harassment issues. Opening the lines of communication may have helped to make the idea of male victimization less taboo. Lastly, one of the most obvious reasons may be the fact that there are more women in the workplace than ever before and consequently more women in positions of authority. However, David Grinburg, spokesperson for the EEOC, claims that the majority of the sexual harassment claims brought may males have been same-sex, or male-on-male claims. These claims are not always merely the result of homosexual advances in the workplace, but are commonly the result of mean jokes or of horseplay.

Thursday’s 30 Rock episode “When it Rains, it Pours” opens with Liz [Tina Fey] on the receiving end of a construction worker’s cat-call.  Initially, Liz believes the comments are directed at her best friend Jenna [Jane Krakowski].  However, the construction worker quickly corrects this misunderstanding and informs Liz the comments were for her.  After openly speculating on the current medical condition of the construction worker’s genitalia, Liz tells Jenna she has never experienced that kind of attention before.  Jenna responds that Liz has been happy and more confident now that she is with someone and guys can sense it.  Liz and Jenna may have shrugged the encounter off, but for many women such an experience is not received as well.

In the workplace setting Congress has provided a statutory remedy, Title VII of the 1964 Civil Rights Act, to alleviate the hostile and intimidating environment sexual harassment creates.  According to the U.S. Equal Employment Opportunity Commission over the past decade sexual harassment grievance filings have gradually decreased.  Whether this is largely a result of Congress’ intervention or more in response to other factors, such as the changing demographics in the workplace, is a topic for another day.  However, since the encounter did not occur in her workplace Liz’s experience raises the interesting question of what legal remedies to women have for such harassment while in public?

Many States such as New York have passed laws that criminalize certain forms of harassment.  For example, under N.Y. PEN. LAW § 240.26:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.

Harassment in the second degree is a violation.

However, the closest the New York law comes to addressing construction worker cat-calls is through subsection 3.  It would be extremely difficult for the New York Legislature to protect women from this type of harassment through a statute directly addressing the issue.  If harassment through speech was specifically addressed instead of using the broad terms of “conduct” and “acts” in the statute, the New York statute might be deemed unconstitutional.

For example in R.A.V. v. City of St. Paul, the United States Supreme struck down a Minnesota statute that read:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

While the Court declared “burning a cross in someone’s front yard is reprehensible,” it nonetheless found it violated the right of freedom of speech under the First Amendment.  Certain categories of speech can be regulated because their content is not protected by the First Amendment, such as obscenity, fighting words, and child pornography.  However, the R.A.V. Court held that while the government may regulate generally the unprotected categories of speech the categories are not “invisible to the Constitution.”  The Court cautioned legislators the unprotected categories may not be made “vehicles for content discrimination unrelated to their distinctively proscribable content.”  Thus, even though the Minnesota Supreme Court limited the construction of the statute to reach signs and displays that amount to Fighting Words the statute was still unconstitutional.  The R.A.V. Court reasoned the statute only applied to fighting words pertaining to “race, color, creed, religion or gender” so fighting words pertaining to homosexuality were permissible.  Since the statute only prohibited speakers from expressing their views on certain disfavored subjects, it violated the First Amendment.

Therefore no matter how lewd and lascivious or reprehensible the construction worker’s comments may be, any legislation that specifically addressed it would have to walk a very fine line.  One misstep and the Legislators could find themselves treading on the First Amendment.  In the absence of specific legislative remedies to rely on some women look to alternative means for relief.  The real question to me seems to be, “would you want someone to treat your sister, wife, or mother this way?”

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