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Yes, Same Sex Harassment Can and Does Occur

Posted by Scott M. Peterson | Jun 13, 2015 | 0 Comments

Same Sex Sexual HarassmentIn Arcuri v. Kirkland, 113 A.D.3d 912 (3d Dep't 2014), the Appellate Division Third Department (one of four mid-level appellate courts in New York State), had the occasion to address an issue that is relatively rare in employment law: same sex sexual harassment. This is not the same as harassment of an employee on the basis of that employee's sexual orientation. Rather, same sex sexual harassment claims generally fall into three categories: (1) the harasser was homosexual and motivated by sexual desire (similar to the more common male-harasser female-victim sexual harassment cases); (2) the harassment was so sex specific and derogatory that it was clear that the harasser was motivated by hostility to a particular gender in the workplace; and (3) there is direct evidence that a harasser treated one gender more poorly as compared to the other gender in the workplace.

In Arcuri, two male employees complained that, during a work trip, their supervisor brought a woman home to their shared motel room and engaged in sex in their presence. After complaining to the employer, the men were fired. The brought a claim for unlawful discriminatory practices to the New York State Division of Human Rights (DHR) alleging that they were victims of a hostile work environment based upon sexual harassment and retaliated against for making complaints. Although DHR found in their favor, the Appellate Division reversed.

A finding of discrimination based upon sexual harassment requires a showing that the harassment occurred “due to” the employee's gender. In this case, the Appellate Division found that there was no evidence that the supervisor's actions were motivated in any way by the employees' gender—and that, despite claiming “sexual harassment”, the employees had not alleged that it was. While the supervisor's actions were completely inappropriate and unprofessional, the supervisor did not act because of some hostility towards the employees as men. This finding is a common theme in potential employment cases: inappropriate, rude and unfair conduct only rises to the level of discrimination when it occurs because of an employee's gender, race, age, disability or other protected reason. Indeed, employers commonly raise the “mean boss” defense in discrimination cases, claiming that the boss's actions were not taken because of a protected reason, but, essentially, because the boss is a jerk.

The Court went on to find that, because there was no gender-based discrimination, the employees' claims for retaliation should also be dismissed. Understanding this holding requires a bit of reading between the lines because, generally, the fact that a court finds that an employee was not ultimately discriminated against does not mean that the employee was not retaliated against for making a complaint. Under Title VII, so long as the employee has a good faith, reasonable belief that the employer's conduct constituted “unlawful discrimination” when he or she complained, the employee can still have a retaliation claim even if the Court finds no discrimination occurred. The Court in Arcuri did not get into an analysis of whether the employees had a reasonable, good faith belief that their supervisor's conduct violated the law when they complained.  But, reading the cases cited by the Court, it is apparent that, since the employees never alleged that the supervisor took the actions he did because of their gender, the Court implicitly found that they did not have a reasonable belief that his conduct constituted unlawful discrimination when they complained.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.


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