Sexual Harassment: New Sinkholes and Safe Havens

July 30, 2000

Within days, or even hours, an employer must decide whether something said or done at work is, or is not, “sexual harassment,” and what to do about it. After over a year of litigation, a court rules that the employer’s decision was right or wrong, sometimes announcing some new interpretation or application of the law that did not even exist at the time of the employer’s original decision. Courts often change the legal rules that apply to employers after the “game” has already been played. What can you do to protect yourself?

The purpose of this article is to point out some surprising new ways in which courts are applying the law of sexual harassment. By understanding the direction of these judicial rulings, we can best avoid liability in the future for the human resources decisions that we must make today. We can avoid the new “sinkholes” and take advantage of the new “safe havens” in the ever changing law of sexual harassment.

Sexual Harassment Is No Longer About “Sex.”

This past August, the Kentucky Court of Appeals approved a verdict of over $75,000, plus all the cost of litigation, because a female manager failed to put a stop to one man harassing another man at work. Brewer v. Hillard was Kentucky’s first “same sex,” sexual harassment case. Of course, the female manager was not condoning the harassment. She simply did not consider the crude “jokes” and “horseplay” that one male employee was directing toward another male employee to be “sexual harassment.” The men were working on a loading dock. Loading docks are not known for their “Sunday School Class” atmosphere. The manager considered the men’s conduct nothing unusual.

This Kentucky manager was caught off guard because of the new way in which courts are viewing sexual harassment liability. Sexual harassment is no longer about sex. Sexual harassment is, now, about gender. The U.S. Supreme Court first created this new understanding of sexual harassment in Oncale v. Sundowner Offshore Services, Inc. Recent judicial applications of Oncale are now producing some surprising results across the nation.

To understand the courts’ new definition of “sexual harassment,” we must go back to the origins of sexual harassment law. The words “sexual harassment” appear nowhere in federal or Kentucky statutes. Sexual harassment liability is the creature of federal and state employment discrimination law. At the federal level, this is Title VII of the Civil Rights Act. The parallel Kentucky statute is found at KRS Chapter 344.

Title VII states that “(i)t shall be an unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, and conditions of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” Over a decade ago, the U.S. Supreme Court created the law of sexual harassment by finding that sexual harassment alters the “conditions of employment” of a person “because of . . . sex.” Therefore, “sexual harassment” is sexual discrimination. Until recently, however, employers, employees, and the courts have viewed sexual harassment, primarily, as conduct that occurs because one employee (or manager) is sexually attracted to another employee “because of” his or her (mostly her) “sex.” Oncale forever changes this common understanding of “sexual harassment.”

“Locker Room” Liability.

Oncale v. Sundowner Offshore Services, Inc. involved extremely crude “jokes” and horseplay among the all male crew of an offshore drilling rig. None of the men were homosexual. No sexual attraction was involved. Yet, the U.S. Supreme Court authorized a sexual harassment claim brought by a crewmember who was the “butt” of his coworkers’ “harassment.” The logic underlying the U.S. Supreme Court’s decision was that the employee, Oncale, would not have been harassed if he had been a woman.

The U.S. Supreme Court announced a simple test to determine whether harassing conduct is or is not “sexual harassment.” According to Justice Scalia, writing for the majority of the Supreme Court:

“The critical issue . . . is whether members of one sex are exposed to . . . conditions of employment to which members of the other sex are not exposed.”

The impact of the Oncale test for sexual harassment is quickly appreciated by anyone who has observed the “real world” of a men’s locker room.

Men often engage in crude jokes, gestures, and horseplay, in a “male only” environment, which they would not “expose” to women. In many cases, and perhaps in a slightly different manner, the same may be true of women. If a male employee tells a “dirty joke” to a male co-worker that he would not tell to a female coworker, then “one sex [male] (is) exposed to . . . conditions of employment . . . to which the other sex [female] (is) not exposed.” The Oncale definition for “sexual harassment” has been met. The employee’s “dirty joke” may be sexual harassment, simply because he would not have told it to a women.

The United States Supreme Court did not intend for Oncale to outlaw every difference in how men and women relate to each other at work. The Supreme Court urged lower courts to apply “common sense” and to take into account the “social context” of words or behavior that are legally challenged as “sexual harassment.” Yet, by the time a judge rules on whether an employer should have treated an occurrence as “sexual harassment,” or not, the employer has already lost.

The employer has lost thousand of dollars in legal fees and distraction to its business. The employer has also faced the risk that crude words and/or conduct will sound and look very different in a well lit courtroom than on the loading dock, the assembly line, or in the backroom of the office. Oncale brings a vast amount of workplace conduct within the definition of what may be “sexual harassment.” Yet, employers have nowhere to look, but to recent lower court decisions applying Oncale, to determine what conduct is “sexual harassment.”

The Courtroom “Gross-Out” Test.

Recent lower court decisions tell a simple story. Regardless of the legal reasoning or language used to justify the judge’s decision, the outcome of any case is largely determined by how severely the judge is offended by the alleged “sexual harasser’s” words or conduct. There is a “gross-out” test. If a particular judge finds the words or conduct merely distasteful, he or she is likely to find no liability. If the judge is “grossed out,” however, the words and/or conduct are likely to be treated as “sexual harassment.” Of course, it is almost impossible to predict with precision what will “gross out” one judge as compared to another.

In Schmedding v. Tnemec Company, Inc., the Eighth Circuit Court of Appeals, sitting in St. Louis, found sexual harassment where an employee was falsely rumored to be a homosexual. Behavior such as the scratching of crotches and buttocks, and humping a doorframe was held to be gross enough to create sexual harassment liability. The First Circuit, sitting in Boston, however, found in Higgins v. New Balance Athletic Shoe, Inc., that much worse conduct was not “sexual harassment.”

In Higgins, a homosexual employee was called vulgar names. He was subjected to obscene remarks about his imagined sexual activities. He was mocked with stereotypical feminine mannerisms. His tormentors squirted him with condiments and poured hot cement on him. One harasser even threatened to kill him “from time to time.” Nevertheless, the Court ruled that Higgins’ harassment was not sexual harassment. The court found that Higgins was harassed because of his sexual orientation, not because of his male sex (gender). The Court observed, “Title VII does not prescribe harassment simply because of sexual orientation.”

What To Do.

What should employers do to avoid liability?  The answer is, do not take the “gross-out” test. If management becomes aware of sexual jokes, crude remarks, or abusive horseplay, stop it, even if only men are involved. Oncale states that employers are not required to impose a “general code of civility” upon their employees. Yet, employers who fail to require some degree of “civility” will pay the cost of litigating what words or conduct are, or are not, sufficiently “gross” to cause a judge to rule that they are “sexual harassment.” Employee complaints about “dirty” jokes, crude gestures, or sexual innuendoes, should be treated as “sexual harassment” complaints, regardless of whether the harassment is directed toward members of the same sex or the opposite sex.

“Sissies” versus “Tomboys.”

Harassment that occurs “because of” an employee’s sexual orientation is not “sexual harassment.” Yet, recent court decisions point to new legal theories under which employers will be held liable for the harassment of homosexuals. Employers can expect homosexual employees to pursue “sexual harassment” complaints using creative legal theories. Homosexual plaintiffs will allege that they are harassed, not because of their sexual orientation, but because they fail to meet their employer’s, or fellow employees’, stereotypes of how men should act.

For example, in Higgins v. New Balance Athletic Shoe Company, the First Circuit Court of Appeals implied that the homosexual plaintiff could have recovered for sexual harassment if he had alleged that the harassment was because he is a man who is feminine in his mannerisms. Women, who are “Tomboys” (more masculine in mannerisms), are not harassed. Thus, the argument goes, harassment of an effeminate man is “because of” the male’s “sex” (gender). The Seventh Circuit Court of Appeals, which sits in Chicago, indicated in Shermer v. Illinois Department of Transportation, that it might also accept this theory to protect homosexuals from harassment. Of course, all homosexuals are not effeminate. These cases illustrate, however, that courts are likely to extend legal protection from harassment to homosexuals by one legal theory or another in the near future.

What To Do.

(1) Treat Homosexual Harassment as Sexual Harassment – Even though harassment because of sexual orientation is not, now, legally forbidden, new legal theories will, likely, cause courts, in the future, to treat harassment of homosexuals as “sexual harassment.” Wise employers will do so now.

(2) Document Reason for Harassment – If you face a complaint of homosexual harassment, be careful to document the true reason for the harassment in your sexual harassment investigation. Ask the “victim” questions such as: “Would you have been harassed if you had acted the same way, but not been gay?” If the answer to this question is, “yes,” you may prevent the employee from, later, claiming that the real reason for the harassment was something other than his sexual orientation, such as a failure to satisfy male stereotypes.

The “Equal Opportunity Harasser” Defense.

The U.S. Supreme Court decision in Oncale not only created new “sinkholes” for employers. It also confirmed a strange “safe haven.” Since Oncale held that “sexual harassment” occurs only where “one sex (is) exposed to . . . conditions of employment . . . to which . . . the other sex is not exposed,” a manager or employee who is equally crude, obnoxious, gross, and/or sexual toward both men and women cannot be guilty of unlawful “sexual harassment.” The reason is that both sexes are “exposed” to the same “conditions” by such an “equal opportunity harasser.”

Courts struggled with this “equal opportunity harasser” defense prior to Oncale. How could rude, sexual behavior be unlawful when directed only against the opposite sex, but the same behavior be legally immune if directed against both sexes? Yet, Oncale made just such an “equal opportunity harasser” defense the law of the land. By definition, both sexes are exposed to the same conditions if both sexes are equally harassed.

The “equal opportunity harasser” defense produces some shocking results. For example, in one Fifth Circuit U.S. Court of Appeals case, Butler v. Ysleta Independent School District, a male high school principal sent sexually harassing letters to three female teachers. The court dismissed the teachers’ sexual harassment case, however, because the principal also sent offensive letters to male teachers. In another example, Holman v. State of Indiana, a federal trial court in Indiana dismissed a husband and wife’s claim for sexual harassment. Their male shop foreman harassed the wife for sex. Yet, the male shop foreman also asked the husband for sex. As a result, the couple could not claim that either of them were being “sexually harassed.”

In Richmond-Hopes v. City of Cleveland, the Sixth Circuit U.S. Court of Appeals, which has jurisdiction over Kentucky, recognized the “equal opportunity harasser” defense. The defense was used to shield an employer from liability for what would, otherwise, have been severe sexual harassment. The plaintiff was one of only two women working in non-secretarial positions in the City of Cleveland’s electric meter service department. The plaintiff was also a union steward. In a confrontation with the plaintiff, her supervisor called her a “bitch”, grabbed his crotch, and made a gesture near his crotch “mimicking masturbation.” He, then, said to the plaintiff, “stroke me, stroke me.” The Court dismissed the plaintiff’s sexual harassment complaint, however, because “the record also shows that [the supervisor] had used this precise offensive gesture . . . in verbal exchanges with male employees.” Since the supervisor equally harassed both men and women, the employer could not be liable for “sexual harassment.”

What To Do.

Certainly, employers should NOT ignore harassment of any kind, in the workplace, even if the guilty manager or employee equally harasses both men and women. When confronted with a sexual harassment complaint, however, employers may want to develop evidence of “equal opportunity harassment” as part of their sexual harassment investigation. An admission, during the investigation, that the “harasser” exhibited the same conduct toward both men and women may create a much needed defense if the harassment actually occurred.


As one U.S. Court of Appeals observed, “(w)e are witnesses to the birth of a second generation of sexual harassment law.” What is, and is not, “sexual harassment” varies from one day to the next, and from one judge to the next. The result is a dangerous legal climate for employers. In such an uncertain legal environment, the best practice is to:

(1)  Keep your workplace as free from crude and lewd acts and communications as possible, regardless of whether the participants are of the opposite or the same sex.

(2) Never ignore a complaint of workplace harassment, even if the harassment seems to have little to do with “sex,” as we usually think of it. Also, remember that harassment “because of” race, color, religion, or national origin is also illegal. Prudent employers will treat any harassment, like they address sexual harassment.

(3) Use your sexual harassment investigation procedure to develop evidence, not only as to whether the alleged harassment occurred, but also as to whether any defenses exist that will keep the employer from being held liable for “sexual” or other unlawful harassment.

Answers to questions such as, “Did the harasser talk ‘dirty’ to both men and women?” may change after the “victim” talks to his/her lawyer. The employer’s sexual harassment investigation may be the best opportunity to gather facts helpful to the employer’s defenses. Today’s employer needs every legal “angle” available. Employers who fail to create a “harassment-free zone” in their workplace, or who fail to use sexual harassment investigations to prepare for litigation, are likely to be caught in the legal cross-fire between a culture that is increasingly rude, crude, and sexual, and courts that see employers as the “babysitters” of that culture’s ill-behaved “children.”