Can a Man Sexually Harass Another Man?

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When they think of sexual harassment, many people envision a male boss putting pressure on a female employee to have sex with him. But that’s not always the case. The stereotype can make it hard for a man to come forward when he finds himself facing inappropriate conduct. He may even wonder, “Can a man sexually harass another man?”

In this blog post, I will discuss what same-gender sexual harassment can look like. I will review EEOC v Discovering Hidden Hawaii Tours, Inc., in which a man is alleged to have harassed several of his male employees. I will also explain what men can do if they are facing sexual harassment at work.

Same-Gender Sexual Harassment Is Illegal Discrimination

There are laws against gender discrimination at every level of our legal system, from local ordinances to federal laws. They prevent hiring practices and decisions based on a person’s sex or gender. At the federal level, Title VII of the 1964 Civil Rights Act says:

“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex… .”

This includes sexual harassment. The United States Supreme Court first determined that sexual harassment was a form of illegal discrimination in 1986 in a case called Meritor Savings Bank v. Vinson. In that case, as in many that followed it, a female employee was coerced by her male boss into performing sexual acts to keep her job.

But sexual harassment applies in same-gender situations too. In 1997, the Supreme Court decided Oncale v. Sundowner Offshore Services. There a male offshore oil worker was sexually harassed by several male co-workers who verbally abused him and performed physical sexual acts with him. The court noted that Title VII protects men and women from discrimination based on their sex. That includes sexual harassment no matter what the genders of the parties happen to be.

EEOC v Discovering Hidden Hawaii Tours, Inc.

Situations like the one in Oncale continue to happen today. Earlier this year, the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcing Title VII of the Civil Rights Act, sued a tourism company for very similar conduct. The EEOC’s complaint says that the president of Discovering Hidden Hawaii Tours developed a pattern of recruiting young men to work for his companies and then sexually harassing them. A decade of sexual harassment of several different employees included:

  • Inviting male employees to join sex parties with him
  • Showing them pornographic photos and videos
  • Demanding that they expose themselves to be considered for employment
  • Making employment opportunities depend on engaging in sexual acts
  • Engaging in unwanted, non-consensual sex acts against male employees

When employees complained about the president’s behavior to their superiors, the company did nothing. This forced some employees to quit. Others faced retaliation from the president for their complaints.

The EEOC took up the case, and has sued the company on behalf of a class of its employees. The lawsuit seeks back pay, compensatory, and punitive damages for the victims, as well as changes to the workplace called injunctive relief. In a statement, Anna Park, regional attorney for the EEOC’s Los Angeles District (which covers Hawaii), said:

“All employees, regardless of gender, have the right to work in a harassment-free workplace and should never be forced to endure such abuse. . . . I applaud these young men for coming forward to tell their stories.”

Sexual Harassment Includes More Than Physical Acts

If the EEOC’s allegations are true, the employees of Discovering Hidden Hawaii Tours, Inc., faced severe sexual harassment. But just because a man isn’t forced to expose himself or engage in sex acts doesn’t mean he doesn’t have a case. The federal definition of sexual harassment is broader than that. It includes patterns of behavior and comments based on or about a person’s gender, as long as they are severe or pervasive enough that a reasonable person would feel they were in a hostile working environment. For men this could include:

  • Being told they are not “manly” enough or do not fit a masculine stereotype
  • Having pornography displayed in their workplace
  • Being called a woman or feminine names
  • Being held to stereotypical expectations of male behavior
  • Inappropriate physical touching

The more often the conduct or statements happen, the more offensive they are, and the more people become involved, the more likely the EEOC and the federal courts will find that a man has been a victim of sexual harassment.

Men Can Stand Up to Sexual Harassment At Work

Men can find themselves the victim of sexual harassment from bosses, managers, supervisors, co-workers, and even customers. When abusive situations occur there are several steps men can take to stand up against sexual harassment at work:

  • File a written complaint with a supervisor or HR department
  • File a grievance with a union representative
  • File a claim with the EEOC or your state civil rights office
  • File a lawsuit in state or federal court.

An experienced employment discrimination attorney can meet with you early in the process and make sure everything is done right to protect your claim. At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We will help you put an end to sexual harassment at work, so you can get back to your job.

Black Haitian Dishwashers Called “Slaves” EEOC Lawsuit Says

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The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit in Florida claiming a local hotel discriminated against Black Haitian dishwashers, including calling them “slaves”. The case raises the questions of whether discrimination can happen between minorities, and how staffing agencies can mask deeper problems.

In this post, I will discuss EEOC vs SBEEG Holdings, LLC et al. I will review the racial discrimination allegations and explain how Title VII applies between different classes of minorities. I will also explore how the EEOC is pursuing staffing agencies who hide discrimination through outsourcing labor.

Hotel Discriminates Against Black Haitian Dishwashers

A number of Black Haitian dishwashers filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the hotel that employed them. They claimed that they had been discriminated against based on their race, color, and national origin when the SLS Hotel South Beach brought on a staffing company to do their work as stewards and dishwashers. The staffing company’s employees were primarily light-skinned Hispanic workers. Some of the terminated employees saw their replacements doing their work, even as they were being escorted from the building by security.

The ensuing EEOC investigation revealed that at the time of their replacement, the Black Haitian employees were treated differently than their Hispanic counterparts. Hotel management prohibited the use of Creole, even between employees, but permitted its Hispanic employees to speak Spanish. It also assigned difficult and physically demanding tasks, such as carrying heavy items, to Haitian staff. In addition, managers and chefs allegedly called the Black Haitian dishwashers disparaging names, including “f—–g Haitians” and “slaves”.

The EEOC addressed the dishwashers’ complaints by submitting the claim to conciliation efforts. When informal negotiations failed in April 2017, the EEOC filed a lawsuit in the United States District Court for the Southern District of Florida. In its Complaint, the EEOC accused SLS Hotel South Beach and other related legal entities of violating Title VII of the Civil Rights Act of 1964.

Racial Discrimination Between Minorities

Title VII prohibits discrimination based on a number of different personal traits, including race, color, and national origin. Employers are not allowed to use these protected traits when making hiring and firing decisions or to create a hostile working environment. While many EEOC complaints allege discrimination by a member of the majority against members of a minority, the law is not so narrow. Any discrimination based on race is illegal, even if it happens by members of the same ethnic community or competing minority groups.

In the case of SLS Hotel South Beach, the allegations were that the hotel pit two minority groups against one another. The management was said to have replaced Black Haitian employees with light-skinned Hispanic workers. This created an apparent hierarchy among racial and ethnic minorities. It also appeared that the management treated each minority group by its own rules. If these allegations are true, it would amount to racial discrimination, favoring the Hispanic workers over their Black Haitian counterparts.

Using Staffing Companies to Sidestep Title VII

EEOC vs SBEEG Holdings, LLC et al. poses a second legal question which appears to have gotten the EEOC’s attention. The Black Haitian dishwasher plaintiffs were removed as a group when the SLS Hotel decided to outsource their jobs to a staffing company that hired primarily light-skinned Hispanic workers. This adds a layer of complexity to the case because the hotel may have access to defenses that have more to do with the legal structure of companies than the treatment of employees. For example, it may argue that it did not control the race of the workers sent by the staffing company.

But the EEOC says that is no excuse. Michael Farrell, District Director for the EEOC’s Miami District Office, said in a statement:

“In serving this community, the Miami District Office is mindful of the diverse workforce in all facets of the service, hospitality and tourism sectors and will protect workers facing discrimination in these important Florida industries.”

Discrimination in complex employment relationships, including staffing agencies, independent contractors, and on-demand workers is one of the EEOC’s top priorities, as described in the Strategic Enforcement Plan for 2017-2021. Regional Attorney Robert E. Weisberg of the Miami District Office said:

“Employers should not be able to avoid liability by using a staffing agency to discriminate when it cannot lawfully do so on its own. . . . Consistent with the agency’s strategic enforcement goals, the EEOC will be vigilant in ensuring employment discrimination is not hidden behind increasingly complex business relationships, including the outsourcing concept.”

Whether SLS Hotel South Beach and its co-defendants will be found to have violated Title VII through the use of a staffing company remains to be seen. But the EEOC believes that by firing the Black Haitian dishwashers without giving them a chance to apply to the staffing agency, the hotel committed illegal racial discrimination against its staff.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current events in racial discrimination. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on your race, color, or where your family comes from. Contact Eisenberg & Baum, LLP, today for a free consultation.