Online Exclusive: Training Tips for Preventing Male-on-Male Sexual Harassment

After former U.S. Rep. Eric Massa resigned his seat in Congress in March amid a House ethics panel investigation into allegations he sexually harassed male staff members, he eventually admitted groping a staffer but denied his intent was sexual. Massa described horseplay at his 50th birthday party in a Fox News interview, saying, “Not only did I grope [the staffer], I tickled him until he couldn’t breathe.”

Massa, D-N.Y., acknowledged that he may have offended the man, even if his motives weren’t sexual. “It doesn’t make any difference what my intentions were, it’s how it’s perceived by the individual who receives that action,” he told commentator Glenn Beck.

With that, Massa neatly defined a key issue in many male-on-male sexual harassment cases: The difference between “boys will be boys” horseplay and illegal behavior is often in the eye of the beholder.

While the law isn’t new–it’s been 12 years since the Supreme Court ruled in Oncale v. Sundowner Offshore Services that an individual can bring a harassment claim against a harasser of the same sex–the media has focused attention on male-on-male harassment in recent months. The Massa scandal and a well-publicized $345,000 Equal Employment Opportunity Commission (EEOC) settlement late last year with the Cheesecake Factory chain for the abuse six male employees allegedly suffered at the hands of male co-workers brought the issue to the fore.

EEOC statistics show that men filed approximately 2,000 sexual harassment claims in fiscal 2009, constituting 16 percent of all such complaints and down from a high of about 2,200 in fiscal 2008. The agency does not differentiate between claims in which a man alleges abuse by a woman and those charging that the harasser was a man, but the EEOC and employment lawyers both note anecdotally that more male-on-male harassment charges are popping up, in part because male victims are more willing to file charges.

“[Since the Oncale decision], society has evolved. There is not the stigma attached to alleging you are a victim of male-on-male harassment that there once was,” says Ron Chapman Jr., a shareholder at Ogletree Deakins.

Egregious Examples

While the stigma may have lessened, cultural biases still impact male-on-male sexual harassment claims. Courts have had a hard time deciding what behavior constitutes this form of sexual harassment.

“If two men are horsing around, is one harassing the other because of his sex? Different courts come down in different ways on that point,” Chapman says.

In general, the law recognizes two forms of sexual harassment, whether the victim is a man or a woman, according to Jeanine Gozdecki, a partner at Barnes & Thornburg. The first involves situations where a person in power offers to give someone a job, a raise or a promotion in return for sex. The second is when the harasser creates a hostile work environment through severe or pervasive incidents that unreasonably interfere with the person’s working conditions.

Some cases of male-on-male harassment are egregious examples of hostile work environments. In Oncale, an offshore oil rig worker alleged that he was sodomized with a bar of soap. In the Cheesecake Factory case, workers at a Phoenix restaurant alleged they were dragged into a freezer and sexually fondled. In a pending EEOC case filed late last year against Sparks Steak House, an upscale New York City restaurant, male employees claim that male managers and workers groped their buttocks, attempted to touch their genitals and rubbed them with their bodies.

But other cases are more subtle, involving motives that may be more about exerting power than fulfilling sexual desires. Employers sometimes don’t recognize those situations, due to cultural stereotypes and a general acceptance of crude behavior by men.

“Given our view of what [male-on-female] sexual harassment looks like–’sleep with me or you’re fired’–it gets confusing when you think of people of the same sex, particularly those who are not gay,” says Marcia McCormick, an associate professor at St. Louis University School of Law. “It may fit fine into our view of what harassment is if the harasser is gay. But that is not the only definition of harassment. It doesn’t mean that a straight man can’t be harassing men because they are men.”

Value Judgments

Determining the validity of claims requires a case-by-case analysis, Gozdecki says, particularly when there isn’t a sexual motive.

“One of the very difficult things is that it’s in the eye of the beholder,” she says. “So conduct that was just fine suddenly isn’t fine because somebody hit their limit.”

Chapman cites a recent case in which he represented a national pizza chain, which settled with a plaintiff who alleged he had been groped by another employee but made no claim that the harasser had a sexual interest in him.

“Most often, it is boorish, inappropriate horseplay that is construed as sexual harassment, rightly or wrongly,” he says. “Generally the fact allegations do not involve homosexual men. Usually [the plaintiffs] are heterosexual men who have witnessed or been subjected to boorish horseplay of a sexual nature. And you don’t have to be gay to be a harasser.”

In settling such cases, putting a value on the case can be difficult because juries often aren’t sympathetic to male plaintiffs, according to Chapman, who has conducted focus groups to assess sentiments of potential jurors toward male-on-male harassment claims.

“In male-on-female sexual harassment, you usually can predict how a jury will react,” he says. “In the male-on-male setting, it’s more likely the jury’s reaction may be, ‘Why didn’t the victim hit the guy upside the head and tell him to stop?’ That sort of mentality makes it more difficult to put a value on those types of claims.”

Civility Standards

To guard against possible male-on-male sexual harassment claims, some employment attorneys advise a zero-tolerance policy on any form of horseplay.

“Horseplay will degenerate into bullying, which will degenerate into harassment,” says Jeffrey Pasek, a member of Cozen O’Connor. He adds that prohibiting horseplay is a requirement for running an efficient business. “We talk about going back to the mission of doing the work that is supposed to be done, not just the legal requirements,” he says.

Gozdecki agrees with setting a standard of civility that exceeds any legal standard. “The best way to protect yourself is to have a code of conduct that says we will not tolerate inappropriate behavior,” she says, adding that cultivating an environment of respect should start from the top.

She offers a rule of thumb for determining appropriate male-on-male behavior. “Think about reversing the roles,” she says. “If a man were doing this to a woman, would we find this behavior objectionable? If it is, then that’s a problem.”