Same-sex harassment: how hostile does it have to be?

Abstract

Purpose

This paper relates to the recent media attention with respect to same-sex issues is leading to a rise in same-sex sexual harassment cases. Given its complicated burden of proof under case law interpretations of the Civil Rights Act, it would be helpful to review current case law governing the issue.

Design/methodology/approach

This review was conducted at the appeals court level where the law is more settled. Over 40 relevant cases were identified and reviewed. Based on this review, guiding principles were derived for practitioners.

Findings

The law is complex, however, several principles can be gleaned: same-sex harassment is only actionable under four specific conditions: sexual overtures, general hostility toward a particular gender, unequal treatment of the sexes and sex-role stereotypes. For those cases meeting these requirements, unwanted physical contact of an intimate nature is considered severe and only requires a few occurrences to be hostile. For conduct that is verbal or visual, it is viewed as less serious and must be more frequent, pervasive and occur over an extended period, often six months or more to be ruled illegal.

Originality/value

There is little recent research on the issue. Administrators need direction on how to deal with these cases.

Citation

Findley, H., Dodd-Walker, E., Edwards, J. and Pappanastos, E. (2014), "Same-sex harassment: how hostile does it have to be?", International Journal of Law and Management, Vol. 56 No. 5, pp. 417-428. https://doi.org/10.1108/IJLMA-08-2013-0038