The hotel maid’ s allegation of attempted rape by Dominique Strauss-Kahn is a harsh reminder that sexual harassment happens. Since the allegation became public, hotel maids from around the country are telling supervisors about their frequent incidents of sexual harassment. Hotel maids’ vulnerability has been exposed.




This classic example of the more powerful male sexually harassing a female is by far the most frequent claim. However, the face of sexual harassment is changing. The number of charges filed by men increased to an all- time high in 2010, making up 16% or 1,875 of the charges filed. Same-sex harassment is also on the rise.



The first successful female-on-male sexual harassment claim was EEOC v. Domino’s Pizza decided in 1995. The store manager, Beth Carrier repeatedly touched and verbally solicited David Papa. When Carrier told Papa she loved him and wanted him to move in with her; Papa ordered her to leave his office and threatened to report her conduct to her supervisor. Upon leaving the store, Carrier told Papa that she would “get him.” Six days later Papa was terminated for “manipulation of paperwork.” The Court concluded that Carrier’s report of Papa’s alleged misconduct was made out of spite and in retaliation for Papa’s rejection of her sexual advances. Papa won a case of hostile environment, quid pro quo sexual harassment and retaliatory discharge.



The Employment Non-Discrimination Act, prohibiting discrimination based on sexual orientation and gender identity has been brought up every year since 1994 and has yet to pass. However, several cases going back to Price Waterhouse v. Hopkins, 1989 have supported plaintiffs who have been discriminated against because they don’t portray their stereotypic gender roles. A recent case, EEOC v. Boh Bros. Construction Co. LLC brought an award of $451,000. Kerry Woods, an ironworker, was harassed by his supervisor because his supervisor thought he was too feminine to be an ironworker.



Harassment based on one’s appearance or mannerisms which do not comply with a gender’s stereotype also protect transgenders. Lieutenant Smith worked for the City of Salem, Ohio in the Fire Department. He was diagnosed with Gender Identification Disorder (GID). He began expressing himself more femininely at work. Co-workers complained about his appearance and mannerisms. Smith informed his supervisor, Tom Eastek, about his diagnosis and imminent sex change operation. Eastek told the Fire Chief, who went to the Law Director for the City to devise a plan to terminate Smith. The 6th Circuit Court reversed the district court’s dismissal in 2004. The Court relied on the Price Waterhouse case that held that an employer who discriminates against women for not wearing makeup and dresses would discriminate against men for wearing makeup and dresses, because the discrimination is based on the victim’s sex.



Same-sex harassment happens, too. The first case was decided in 1998 by the Supreme Court, Oncale v. Sundowner Offshore Services, Inc. The Court held sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII’s prohibition of discrimination “because of … sex” protects men as well as women. The first male-on-male sex harassment class action suit was settled for $1.9 million, EEOC v. Long Prairie Packing Company, Inc., 1999.



Employers who make the common mistake of assuming the treatment at some point was welcomed by the victim are exposing themselves to punitive damages. James Stevens, who worked at a supermarket was sexually harassed by his female supervisor. Stevens was awarded $18 million; almost $17 million was for punitive damages. No one should assume sexual advances or behavior are welcome. Another common mistake made by employers is treating same-sex harassment as “horseplay.” Employers must treat every allegation seriously.

Legislative Update

Indiana’s Immigration Law

This law requires employers enroll and paricipate in the E‐ Verify program if they are doing business with state or local government entities. It will impact all businesses operating in the State by increasing sanctions for harboring or transporting illegal immigrants. A safe harbor is provided only to employers who enroll in E‐Verify. The law takes effect July 1, 2011.

Arizona’s Immigration Law

LAWA, Legal Arizona Workers Act has been contested by various businesses and organizations since 2007. The law requires employers use E‐Verify and has the power to revoke business licenses for knowingly hiring unauthorized workers. The Supreme Court recently ruled that LAWA does not conflict with federal immigration law.

ADAAA

The Americans with Disability Act Amendment Act went in to effect May 26, 2011. The Equal Employment Opportunity Commission issued a FAQ. It is time to have essential functions on your job descriptions and train supervisors how to have a dialogue with underperformers.

Click the newsletter below to read more.