Same-Sex Ruling's Impact May Be Minimal
By Kirstin Downey Grimsley
For most well-managed companies, Wednesday's Supreme Court ruling that sexual harassment law applies to cases where both harasser and victim are of the same sex, won't be a major problem, human resource executives said.
The vast majority of firms already have written corporate policies expressly forbidding unwelcome sexual harassment between employees, and these guidelines are generally written broadly enough that any behavior of a sexual nature would be purposely prohibited, regardless of the gender of the harasser.
"We don't expect this ruling to have a major impact on employers," said Susan R. Meisinger, senior vice president of the Alexandria-based Society of Human Resource Management. "The majority of organizations today have sexual harassment policies that are intended to apply to all individuals, regardless of the gender of the alleged harasser or victim."
At Bethesda-based consulting firm Booz-Allen & Hamilton Inc., for example, the three-page sexual harassment policy warns that unwelcome verbal or nonverbal conduct of a sexual nature is "inconsistent with the firm's commitment to providing a professional work environment for all its employees."
The policy sternly warns that sexual harassment complaints will be investigated by the firm's law department, and that if the charges are substantiated, the worker is subject to a range of disciplinary actions, from a written warning to termination.
"The policy itself is gender neutral and covers any inappropriate behavior of a sexual nature," said Robin Shaffert, associate general counsel at Booz-Allen.
But for companies that are not so well managed, lawyers said, the ruling has the potential to open a new area of litigation.
Katharine Kores, regional attorney with the U.S. Equal Employment Opportunity Commission in Memphis, said she believes many men, both gay and straight, have been abused at work, and some will be likely to speak out now that they know they have a place in the courts.
"I think it'll be more common because people who have been putting up with situations will realize they don't need to tolerate it anymore," she said.
Kores's office recently has handled two cases of same-sex harassment. One involved a young heterosexual man working in a book warehouse who alleged he was harassed by an older gay supervisor, who persistently invited him to orgies and showed him sexually explicit pictures. He ultimately settled his case for about $200,000, she said.
A second case involved male heterosexual construction workers who taunted a heterosexual male co-worker. That case has not yet been resolved, Kores said.
Another same-sex case settled by the EEOC in Houston in 1996 involved a ship captain who was accused of fondling crew members and demanding sexual favors from them.
"This was not horseplay," said Rudy Sustaita, the EEOC attorney who handled the case, in a statement at the time. "This was the real deal: aggressive, physical homosexual advances and no way out for the crew, except to jump into a river or ocean or to strike back in self-defense."
Boston-based sexual harassment consultant Freada Klein said she believes blue-collar environments, such as construction sites and oil rigs, where workers frequently touch one another both playfully and in a hostile way, may find themselves facing more lawsuits. She said the ruling may help clarify the problem as a kind of sexual bullying that can involve either male or female victims.
Klein said many other firms, such as stock brokerages, once known for tolerating locker room-like atmospheres, are already cleaning up their acts.
"Trading floors have gotten better," she said. "They are leaps and bounds better than they were five years ago."
Helen Norton, a lawyer and sexual harassment expert at the National Partnership for Women & Children in the District, said the Supreme Court ruling was helpful because it made it clear the issue "isn't about foul language. It's about serious sexual harassment that may take the form of unwanted physical touching, threats, intimidation. This is not about locker room humor."
Thus far, few employers are expressing concern about the decision. Stephen Bokat, executive vice present of the District-based National Chamber Litigation Center, said he did not get a single call from an employer yesterday asking about the implications of the same-sex ruling.
"I don't think it'll have a dramatic effect on business," Bokat said. "I don't think it happens that often."
Indeed, Bokat said the ruling would make it easier for companies to defend themselves against cases where the only complaint is boisterous horseplay or casual flirting.
In the ruling, Justice Antonin Scalia stressed that "common sense" should prevail, and that the behavior involved must be "objectively offensive."
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