Can a female boss be found guilty of sexually harassing a young male employee? Can a gay man be successfully sued for sexually harassing his gay male subordinate? Can a woman sexually harass another woman?
The answer to all of these questions is a resounding yes. It may seem obvious to some that harassment is harassment is harassment, but just a few short years ago, many workplaces and even courts routinely disregarded or dismissed such complaints, considering them unlikely, impossible or not worthy of serious attention.
Fortunately, cultural shifts are bringing the justice system into line with the fact that anyone can be a harasser or a victim.
In 1993, attorney V. James DeSimone made a historic win when he successfully argued that his client, Wayne Mogilefsky, was being sexually harassed by his boss Michael Levy. Prior to that landmark case, the only published decision in a male-on-male sexual harassment case dismissed it as “horseplay.” DeSimone’s case became a crucial step in paving the way for a 2013 California law recognizing that sexual harassment could in fact take place between persons of the same sex.
Yet as recently as 2016, that idea hadn’t fully gained traction, even in such bastions of gay rights as West Hollywood, Calif., where then-mayor John Duran faced a male-on-male sexual harassment lawsuit that the city paid $500,000 to settle. His re-election soon after the settlement prompted the Los Angeles Times to observe that West Hollywood, for many, seemed to be “the town that #MeToo forgot.”
But in 2019, as Duran faced new allegations of sexual harassment by members of the Gay Men’s Chorus of Los Angeles, fed-up residents began calling for his ouster – proof that change can eventually make it everywhere.
As an employment attorney for nearly 15 years, I used to represent larger firms where management didn’t believe harassment could exist outside of the stereotypical male superior/female subordinate dynamic. Now, especially in light of the #MeToo movement’s urgings that we view sexual harassment with the utmost seriousness, employers have begun to change their tune. I’ve represented hundreds of employers, from small shops to Fortune 500 firms, and I’ve seen first hand how views have shifted.
No matter who the players in a sexual harassment matter may be, as an attorney, I give the same advice to all clients:
Write down what happened, what was said, where it was said, and who witnessed it. The typical cases come down to the proverbial “he-said-she-said” scenario – no matter the genders involved – so the better prepared you are, with more anecdotal evidence, recorded as soon as possible after an incident occurs, when memories are fresh – the stronger your case.
If you are in a public or shared area of your workspace, where there is not a reasonable expectation of privacy, you might consider recording a conversation. But this can get tricky legally, and in many states, it’s not legal to record phone conversations without the consent of both parties. That’s why email is my preferred method of documentation, especially since it includes a date stamp.
Put your concerns in writing, and send them to human resources.
Once you do so, the company has a duty to investigate, and it cannot legally retaliate against the complainant.
Sadly, despite the law, many employers do attempt to retaliate against a complaining employee through suspensions, demotions, and even termination. It’s not uncommon for someone who makes a harassment complaint to suddenly find themselves hit with bogus write-ups and worse. If an employee has a clean past employment record of disciplinary history, with promotions or raises, that history can serve as evidence that an employer is trying to retaliate against a whistleblower.
Even though headline-grabbing stories like the Harvey Weinstein case focus on female subordinates harassed by male superiors, in my courtroom experience, today’s jurors, especially younger ones, understand that anyone can be harassed. Everyone is much more aware than they were even five years ago that these issues aren’t limited by gender or sexual orientation, and that people should be treated the same and afforded the same rights.
Raymond Babaian is the founding partner of Valiant Law. During his nearly 15 years in practice, he has gained expertise in litigation of employment, general liability, class action, construction, products, and general business litigation matters. He has written volumes of employment handbooks, construction and real estate disclosures and agreements, and general business contracts aimed to fully protect his clients.