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by Frank P. Spada Jr., Esq.

A worker alleges a male supervisor repeatedly engaged in fondling and other sexual harassment.

An employee complains about a supervisor’s sexual innuendo and groping, and then, while accessing his work e-mail, finds images of the supervisor nude and performing a sex act.

In both these situations, the employees were men. In the first case, the harasser was a man; in the second, a woman. Both cases resulted in EEOC sexual harassment claims.

Has society considered harassment cases brought by men the same way as those brought by women? Apparently not. In a Los Angeles case, filed against a restaurant’s two male owners, twin brothers Jed and Wyatt Lorenzen convinced a jury that they had been victims of sexual harassment. But they were awarded only $1,000 each in damages.

Sexual harassment is often a product of the power and control the harasser wields over the victim because of his or her relative position in the company, regardless of gender. But juries that might quickly side with a female victim sometimes find it difficult to sympathize with a man who has been harmed by harassment.

That’s no excuse for employers to take lightly the sexual harassment of men.

More men filing charges

More men are filing claims and bringing lawsuits. EEOC statistics show that the percentage of sexual harassment claims filed by men has doubled, from 8% of all claims filed in 1990 to 16% in 2009.

Some cases allege harassment by female supervisors or co-workers, but many involve men harassing other men. The claims range from unwelcome sexual advances to situations in which a victim is homosexual or perceived to be.

The economic downturn may have contributed to this increase. According to the Bureau of Labor Statistics, from September 2008 to January 2010, 4.4 million men and 2.3 million women lost their jobs. In a robust economy, many men who are terminated can find another job fairly quickly.

When jobs are scarce, unemployed people tend to sue in hopes of replacing lost income—and many of those suits allege discrimination and harassment.

Indeed, when you compare unemployment rates and percentage increases in sexual harassment claims by men, economically depressed states often have more claims.

(It’s not an absolute correlation.) Michigan’s unemployment rate in January 2009 was 14.6%. The percentage of harassment claims by men increased from 16.6% in 2007 to 26.6% in 2009. But amid Nebraska’s 4.7% unemployment rate in 2009, the percentage of claims by men dropped from 23.4% in 2007 to 12.7% in 2009.

High Court and same-sex harassment

Other factors may have contributed to more sexual harassment claims filed by men. The U.S. Supreme Court—in the 1998 case Oncale v. Sundowner Offshore Services (523 U.S. 75)—held that Title VII protections against workplace discrimination “because of sex” applied to harassment between people of the same sex. That landmark ruling extended federal civil rights laws’ protection to same-gender sexual harassment.

And when the 1994 film “Disclosure” portrayed a sexually aggressive female boss preying on her male subordinate, society began to consider more commonplace the idea that a man could be sexually harassed, and have access to the same protections and remedies as a woman.

Implications for employers

Competent employment lawyers will remind employers that sexual harassment claims can come from any employee, and they’ll often advise handling complaints from women and men in the same way because the potential exposure to the employer is the same. Or is it?

Will society now allow a male victim to get the same consideration as a female, regardless of whether the harasser is female or male? More important, will a plaintiff’s attorneys be less inclined to pursue sexual harassment claims on behalf of men because of the possibility that juries may be less than generous in awarding damages?

With more men filing sexual harassment claims lately, we may get answers to these questions.

So is the increase in sexual harassment claims by men truly the result of the economic downturn and higher unemployment rates, or a statistical aberration that will sort itself out? Or have men in the workforce realized they have the same rights as women to seek a remedy when being harassed by co-workers or supervisors, and are becoming more comfortable with exercising their rights when faced with sexual harassment in the workplace?

Here’s what’s certain: Sexual harassment often involves power and control, and can come from a burly male or a petite female, but the law protects a man as it does a woman.

_______________________________________________

Author: Frank P. Spada Jr. is a partner with Pepper Hamilton LLP, resident in the Princeton office. He represents management in all areas of employment law and labor relations. Frank can be reached at (609) 951-4150 or spadaf@pepperlaw.com.

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