Male-Male Sexual Harassment Claims On The Rise; The Cheesecake Factory Settles

Newsweek published an interesting article online today about sexual harassment, entitled “Abuse of Power” which you can link to here.

The article discusses a 2008 suit filed by the EEOC against restaurant giant, The Cheesecake Factory.  The suit alleged sexual harassment at the chain’s Chandler Mall location in Phoenix, AZ, including incidents of fondling, simulated rape, and employees being forcibly dragged into a restaurant refrigerator.  The Cheesecake Factory has recently settled the suit, agreeing to pay each of the plaintiffs in the case $340,000.

What makes the article – and, indeed, the EEOC action – most interesting, however, is that the suit was brought by a group of male employees, alleging sexual harassment by other men in the workplace.  According to the EEOC, such claims are on the rise.  Their office has witnessed a doubling of such claims between 1992 and 2008.  Male to male sexual harassment claims now comprise approximately 16 percent of all sexual harassment claims.  However, it is thought that such claims may actually represent an even higher percentage because the EEOC does not always maintain records of the harasser’s gender.

Male to male sexual harassment cases illustrate a fact not often understood about sexual harassment cases.  Sexual harassment cases are about power – not sex, flirting, or seduction.  In The Cheesecake Factory case, for example, no allegations were made that the harassers were actually attracted to men.  Rather, the behavior of the harassers in the case was a form of intimidation.

In 1998, the U.S. Supreme Court recognized a cause of action for same-sex sexual harassment in the landmark case of Oncale v. Sundowner Offshore Services.  I have placed a PDF copy of the case in the Box.  The Court’s decision was unanimous.

Oncale arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male coworkers with the acquiescence of his employer. The Court held that Title VII‘s protection (Title VII of the Civil Rights Act) against workplace discrimination “because of… sex” applied to harassment in the workplace between members of the same sex.  Oncale was heralded as a major “gay rights” case, even though all the parties in the case were heterosexual.

In Oncale, the plaintiff was subjected to horrific acts of violence in the workplace, including being sodomized with a bar of soap.

According to the Newsweek article, “tough economic times have also been known to foster an environment of increased sexual harassment,” quoting human-resources consultant Michele Paludi. Harassment escalates when those in power feel threatened, either by an influx of female workers or a challenge to the traditional gender expectations.

Title VII law requires supervisors or employers to act promptly to investigate and remedy sexual harassment once they become aware of it.  Failure to do so can lead to employer liability.  In December 2009, for example, the U.S. Court of Appeals for the 2nd Circuit ruled in Duch v. Jakubek, 2009 WL 4421267 (2d Cir. 2009), that a jury reasonably could find that a supervisor who ignored facts regarding suspected workplace sexual harassment had constructive knowledge of the harassment and, thereby, exposed his employer to liability under Title VII.

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