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When Men Harass Men and Women Harass Women: What is Same Sex Sexual Harassment?

Posted by Giovanna A. D'Orazio | Oct 06, 2020 | 0 Comments

Kimberly Guilfoyle is joining the list of media personalities accused of inappropriate workplace behavior.  If you aren't familiar with Ms. Guilfoyle, she is an attorney and former Fox News personality, who recently gained further national recognition as a representative of the Trump administration and girlfriend of Donald Trump, Jr.  According to a recent New Yorker article, Ms. Guilfoyle's departure from Fox News was precipitated by a sexual harassment complaint by a female assistant (that Ms. Guilfoyle denies). 

As employment lawyers, this perked our ears because it implicates a lesser known area of discrimination law: same sex sexual harassment. This is not “same sex” in the context of “sexual orientation” – this is men harassing men, and women harassing women because of their sex.  (We have no personal knowledge of the Guilfoyle situation and make no opinion as to whether the conduct she was accused of rises to the level of illegal activity).  Often, harassment is not illegal because it's not happening “because of sex” (or some other protected status).  Cases are very clear that Title VII (and NY's human rights law) are not intended to be “civility codes”, protecting employees from all forms of crass or inappropriate behavior, and only prohibit discrimination and harassment because of an employee's protected status.  But both federal and New York law do recognize same sex sexual harassment, and a New York case from 2014 does a thorough job of explaining what it means.

In 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) explained that 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.  They 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" (or “because of”) the employee's gender (the terms “gender” and “sex” can have different meanings but are often used interchangeably in the caselaw).  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.  As we noted above, 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 "bad 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.  

If you believe you have been harassed or discriminated because of your sex – or retaliated against for making a complaint – please feel free to contact us and we would be happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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