Same-Sex Sexual harassment

Can a woman sexually harass another woman? And / or, can a man sexually harass another man?

Sexual harassment is illegal, regardless of whether the harasser is a female or a male and the victim is of the same gender or the opposite gender. Although there are many complaints of a woman who is a lesbian sexually harassing another woman or a man who is gay sexually harassing another man, this is not the norm. More often, sexual harassment where the harasser is the same gender as the victim involves totally heterosexual individuals. Regardless of the person’s sexual orientation, harassment is illegal. For the harasser to say, “I’m not gay” is absolutely not a defense.

There are two types of sexual harassment. The first type known as Quid Pro Quo, is defined requests or demands for sexual favors and/or other verbal or physical conduct of a sexual nature that is made a condition of employment or the basis of an employment decision. The second type of sexual harassment are all those unwelcome sexual advances, sexual comments, sexual jokes, sexual touching etc., that cause or contribute to the creation of a hostile working environment. Regardless of the type of sexual harassment and regardless of whether it is between individuals of opposing genders or individuals of the same gender, sexual harassment is illegal and actionable.

Same-sex sexual harassment is illegal on a federal level.

Regardless of the harasser’s and the victim’s gender or sexual orientation, sexual harassment is illegal because it violates Title VII of Civil Rights Act of 1964. This was not always the law.

In the past, some court held that same sex sexual harassment is only actionable if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (CA4 1996) with Wrightson v. Pizza Hut of America, 99 F.3d 138 (CA4 1996).  Meanwhile, other court held that same-sex sexual harassment claims are never cognizable under Title VII (see the decision of the 5^th Circuit in Oncale v. Sundowner Offshore Services, Inc., and Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND Ill. 1988).

Subsequently, other more lenient court held that harassment that is sexual in content is always actionable, regardless of the harasser’s sex, sexual orientation, or motivations, (see Doe v. Belleville, 119 F.3d 563 (CA7 1997)).

The issue was finally put the rest when the Supreme Court, took on the appeal in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) and overruled the Fifth Circuit in reasoning that “common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive” and held that “sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.” As such, the law as it stands today, allows individual that are harassed by those of the same gender (sex) to seek a recovery for the sexual harassment and hostile work environment that they are forced to endure.

Same-sex sexual harassment is illegal in New York.

In New York same-sex sexual harassment violates both local and state laws. This type of sexual harassment violates the New York City the Administrative Code (§ 8-101) and the New York State the Human Rights Law (Executive Law § 296).  Although both statutes make same-sex sexual harassment illegal, the Administrative Code of the City of New York provides more protection and allows for a better recovery.

The First Department, in Williams v New York City Hous. Auth., 2007, citing the legislative history of the Restoration Act, confirmed the legislative intent to abolish “parallelism” between the New York City Human Rights Laws and federal and state anti–discrimination laws by holding that the City law is to be “construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof” affording more protection to victims of sexual harassment. As such, in New York, individuals that are sexually harassed by those of the same gender (sex) are able to seek recovery under Federal, State and the more protective City laws.

Same-sex sexual harassment is illegal in New Jersey.

The New Jersey Law Against Discrimination (NJLAD) also prohibits discrimination because of one’s sexual orientation or gender. In Zalewski v. Overlook Hosp., 300 N.J. Super. 202 (1996) the Court considered the issue of whether the NJLAD (N.J.S.A. 10:5-1 through -42.) applies to sexual harassment of a heterosexual by other heterosexuals in the work place.  Similar to New York City, the New Jersey Court, in reasoning that the broad language of the NJLAD and its dictate that it is to be liberally construed  as well as a common sense approach that no one should be subject to sexual harassment that creates a hostile workplace, held that a same-sex sexual harassment is also illegal and actionable.

As such, in New Jersey, individuals that are sexually harassed by those of the same gender (sex) are able to seek recovery under Federal and the more protective State laws.

Male on Male and Female on Female Sexual Harassment.

In New York City, New York State, and in New Jersey both local and federal laws protect victims of sexual harassment from individuals of the same gender.  In New York City the Administrative Code of the City of New York § 8-101, in New York State the Human Rights Law, Executive Law § 296, in New Jersey the Law Against Discrimination (N.J.S.A. 10:5-12) and on a Federal Level Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 e) protects employees against same-sex sexual harassment.

The New York Sexual Harassment attorneys at the Akin Law Group and the New Jersey Sexual Harassment lawyers at the Akin Law Group are here to help. We will treat you with the compassion, care and the consideration that you deserve. Consultation is always Free and always Confidential. We will handle your claim in a very discrete and expeditious manner.

Call and speak privately with one of our attorneys at 212-825-1400 or reach us via e-mail at [email protected].