VOL. 112 | NO. 10 | Thursday, January 22, 1998
By SUZANNE THOMPSON
Challenging the boundaries
Same sex sexual harassment cases challenge confines of Title VII
By SUZANNE THOMPSON
The Daily News
When most people think of sexual harassment, they picture a scenario in which a female employee is the object of unwanted sexual attention by a male co-worker.
Or they may think of a power-hungry female supervisor making advances toward a male employee, as was the case in the movie "Disclosure" with Demi Moore and Michael Douglas.
But, rarely do people imagine sexual harassment taking the form of advances by members of the same sex in a work environment.
Still, same sex discrimination does occur, and two Memphis attorneys said it has happened here in the Bible Belt.
Jeff Weintraub, an employment law defense attorney, said he has been involved in several cases in which same sex discrimination was at issue.
Weintraub said 90 percent of the cases he deals with involve the "classic pattern of a male supervisor and a female alleged victim." However, the other 10 percent deal with a female supervisor and a male alleged victim, a male supervisor and a male alleged victim or a female supervisor and a female alleged victim.
He said of the smaller percentile, it is not uncommon to have same sex harassment claims.
"In that group of that 10 to 15 percent that do not fit the classic pattern, we have seen quite a number of same sex sexual harassment cases," he said.
The first issue the plaintiffs attorney must deal with is the legal question of whether the cause is actionable or not, he said.
Weintraub said the law, found in Title VII of the Civil Rights Act of 1964, is fuzzy on the entire issue of same sex discrimination. The law, he said, protects people from discrimination based on race, color, religion, sex or national origin.
Weintraub said while sexual discrimination entails being treated differently by virtue of biological sex, sexual harassment is more brazen.
"Sexual harassment has to do with the more overtly sexual things sexual teasing, touching, solicitations and so forth," Weintraub said.
It is the language of Title VII that has given rise to controversy about whether same sex discrimination should be recognized.
"The sex refers to biological sex, not sexual preference," Weintraub said.
Because the law says people are protected against discrimination because of their sex, not their sexual orientation, the door has been left open to challenge whether same sex discrimination is covered by Title VII at all.
"When you put it bluntly, it sort of requires that the aggressor be homosexual. Homosexuality is not a protected classification under Title VII," Weintraub said.
"For years, many assumed, and most courts assumed, that being treated differently on the basis of your sex meant it had to be a different sex."
The Sixth Circuit Court of Appeals, which includes Tennessee, has ruled that Title VII does cover this form of discrimination but other circuits around the country have ruled differently.
Dan Norwood, a plaintiffs attorney who handles employment law cases, said the circuit which includes Mississippi has ruled that Title VII does not cover same sex discrimination.
"Theyve rejected the same sex as being a violation of the law. I tell people, We never realized how liberal Mississippi was.
"Because technically, they are in favor of homosexuals hitting on people at work which is being in favor of homosexuality," Norwood said.
But, because the circuits are divided in their opinions, the U.S. Supreme Court ultimately will decide the issue.
Even though the Mississippi courts may not recognize same sex discrimination, some Mississippi employers apparently do, because Norwood has settled one such case in that area.
Norwood, a partner in Norwood and Bedoo, gives seminars to groups of employers to teach them how they can avoid conflicts surrounding discrimination and sexual harassment.
"Sexual harassment, just like rape, is a power thing. Its not just sex, its power that you can get what you want. Youre not dealing with rational people," Norwood said. "Same sex is just another aspect of discrimination."
And sexual harassment is what same sex discrimination really boils down to, he said.
"Sexual harassment is unwelcome sexual conduct. It really doesnt matter whether its a person of the same sex or a different sex, its making unwelcome actions or gestures," Norwood said.
Norwood said he tells his seminar attendants that bi-sexuals stand the least chance of being prosecuted for violating sexual discrimination laws because they dont treat people differently because of their gender.
"If you have somebody that goes both ways, who is bi-sexual, they dont care whether they hit on a male or a female, then thats not a violation of the Title VII discrimination laws because they are not discriminating against a man or a woman. Theyll take either one," Norwood said.
"Its a good legal defense. So, Ive always told employers if they are going to harass someone, they better make sure its men and women both, not either one."
Norwood says he gives "scare talks" to employer groups, usually human resource managers, so they will encourage their workers to do the right thing.
"Its smart for an employer to do it, because a suit can cost them a lot of money. Even if they arent guilty, they can spend a lot of money on attorneys fees just defending the case," Norwood said.
He said his goal is to instill a sense of personal responsibility because in discrimination cases its usually not just the employer who is liable but the individual who committed the discriminatory act as well.
"Its not just the employer thats liable but the individual. You sue the individual usually for other kinds of personal injury torts intentional infliction of mental distress, assault and battery if there was any touching, and that way, the individual that did it is guilty and liable dollar-wise just like the company is," Norwood said.
Norwood said he would like to see discrimination curtailed and one day eliminated. But, he doesnt expect it to happen any time soon.
"I even tell the groups, No matter what I teach you as human resource directors, your people are still going to screw up and Ill have lots of lawsuits to do. Because they wont listen to you."