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Same-sex sexual harassment claims seem to be on the rise, according to Lema Khorshid of Fuksa Khorshid LLC in Chicago. Increasingly, more male employees are filing claims that they are being harassed by other men, she said.
It may be a different set of facts than your typical harassment case, but should be treated the same as a traditional harassment situation, Khorshid told SHRM Online. That said, handbooks and training may need some revising to reflect the reality of same-sex harassment, and investigators should be sensitive about possible bias against alleged same-sex harassers.
Like Khorshid, Linda Doyle, an attorney with McDermott, Will & Emery in Chicago, also has seen an increase in same-sex harassment claims.
However, Elise Bloom, an attorney at Proskauer in New York City, said she hasn’t seen a rise in the number of same-sex harassment claims. “I have seen a few, but not an overwhelming number,” she said. “Same-sex sexual harassment has been recognized since the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Services Inc. [523 U.S. 75] in 1998.”
Bloom added, “All sexual harassment claims are sensitive.” She agreed with Khorshid that “a same-sex sexual harassment claim should be investigated like any other harassment claim,” including with the “same sensitivity and seriousness as any other harassment claim.”
Watch Out for Bias Against Alleged Harassers
Treating same-sex sexual harassment claims the same doesn’t mean there won’t be some differences between same-sex and traditional harassment claims.
“One potential additional element is stereotyping. Investigators should be trained to be sensitive to avoiding stereotyping either the alleged harasser or the alleged victim,” Bloom said.
Doyle cautioned that “There is unfortunately some bias against the LGBT [lesbian, gay, bisexual and transgender] community that may lead to spurious claims. Human resources’ role is to spot that bias and deal with it. Investigations should be done as confidentially as possible for this reason. In addition, those who raise claims in bad faith should be disciplined.”
Revise Policies, Update Training
Bloom also recommended revising company policies to reflect that sexual harassment includes same-sex sexual harassment. “Second, make sure any sexual harassment training includes same-sex sexual harassment,” she said.
Same-sex harassment often “starts when an employer does not have a comprehensive sexual harassment policy that is not clearly communicated to its employees, or they have one and it does not address same-sex scenarios,” Khorshid remarked. “More times than not, the victim doesn’t know what to do as they are being harassed and the perpetrators don’t think they are doing anything wrong. So it boils down to creating a policy and communicating that policy effectively.”
Investigate and Act
In treating same-sex harassment claims the same as any other, Khorshid recommended, “You need to take the time to investigate thoroughly and keep the investigation confidential. Treat the complainer with compassion and respect, listen carefully to his/her side of the story. The last thing you want to do is escalate any unwanted emotions. Don’t attack the victim or retaliate against him/her for bringing the matter to your attention.”
Employers should “keep an open mind [and] conduct a thorough, prompt investigation,” Khorshid said. “Many of these claims may not fit into a typical fact pattern. You can’t make conclusions until you conduct a thorough investigation. Ask relevant factual questions that elicit information. Maintain confidentiality and provide both sides ample opportunity to tell their stories. Your job is to carefully consider the evidence presented by the parties and the witnesses.”
She added, “Follow an established procedure that you have set forth in your handbook, if available. Interview all of the people involved. Details are key—do everything you can to get all of them. Verify all of the details with evidence—if possible—and corroborate stories with other evidence and interviews. You must take immediate and corrective action against the wrongdoer if you find that discrimination occurred.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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