A new page in the employee handbook?

Now that the high court has ruled same-sex sexual harassment is illegal, businesses must figure out hot to deal with it

In the beginning there were Anita Hill, Clarence Thomas, and that now-infamous can of Coke. Now there are Joseph Oncale, a bar of soap, and a Louisiana oil rig full of men.

Increasingly, men harassing women is not tolerated in this country, and now the U.S. Supreme Court has ruled that it's not OK among people of the same sex either. [See excerpt on page 55.] Although most major companies put policies in place long ago to keep the proverbial office stud from pinching his secretary's behind, corporate America now must finally address an issue it has so far managed to avoid.

"This could be to same-sex harassment what Anita Hill was to males and females," says Scott Seitz, partner in Spare Parts Inc., a marketing and communications company based in Westport, Conn., that specializes in the gay and lesbian market. After the Hill case in 1991, corporations updated their harassment policies and added employee training programs. However, Seitz says, most did not include same-sex sexual harassment. Some willfully excluded it; others simply did not think of it. But whatever the reason, those companies will now be "caught in a whirlwind."

Susan Gore, owner of the Dallas-based Mentor Group, which consults with corporations on human resource issues, characterizes corporate America's attitude toward same-sex sexual harassment as "a paradox: clueless and concerned." Big business, Gore says, is "more ignorant than malicious."

That ignorance stems from several sources. Federal law prohibits sexual harassment, but 40 states do not bar discrimination against gays and lesbians. As a result most employees avoid claiming to be sexually harassed for fear of losing their jobs.

In addition, says Mary Froning, a Washington, D.C., psychologist specializing in sexual victimization, many Americans minimize same-sex sexual harassment. "In our society men are not seen as victims, so same-sex sexual harassment [among men] is seldom reported--and if it is, it's brushed off as not a big deal. `Real men' are supposed to punch out their harassers." Of course, that's impossible in the workplace. So men who are harassed by other men suffer in silence until they get frustrated and quit or their performance drops and they are fired.

Same-sex sexual harassment does not always involve one gay and one straight man. Oncale, the heterosexual plaintiff in the Supreme Court case, alleged he was harassed sexually by straight managers and colleagues on an offshore oil rig. He sued his employer, Sundowner Offshore Services, because he said senior managers did not respond to his complaints.

"Most people think same-sex sexual harassment is about gay guys hitting on straight guys, but in my experience gay guys are more often the victims, often of other gay men," says Washington, D.C., civil rights attorney Mickey Wheatley. For example, "there's a big difference between two guys bantering in a bar or restaurant and doing the same thing in the workplace. We're so used to thinking that's how gay men act, we think, There must be something wrong with me if we're bothered by it."

Still, such harassment is rare, adds Seitz, because most gays in corporate environments are still closeted. Fearful of being discriminated against, they neither harass others nor act in ways that would make people think they are gay and bring harassment upon themselves.

Female-female harassment also exists, Gore says, but is an even more unexamined, seldom-discussed area. Such harassment usually involves stalking and constant telephoning. As with men, says Gore, this may be called sexual harassment but is usually about power, not sex.

Whatever its dynamic, Seitz says, sexual harassment is like many other workplace issues that "move to the front burner" whenever a major case receives national exposure, such as the Clarence Thomas confirmation battle, the Tailhook scandal, or the Texaco racism tapes. Senior managers become concerned about their exposure, both corporately and individually, then instruct the human resource department to create training programs and demand that inclusive policies be distributed company-wide.

These actions are expensive, but they're less costly if taken proactively, says Stephanie Blackwood, also a Spare Parts partner. "Companies run training programs all the time," she says. "They should add same-sex sexual harassment training voluntarily now, not involuntarily later. It's like the cost of a physical versus emergency room surgery."

The impact of such training is greatest when it is seen as voluntary, however, Seitz notes. Employees often view "legislated" policies as insincere.

One company that has already got the message is Northern Telecom. When a straight programmer claimed harassment because a gay colleague wore a T-shirt emblazoned with the phrase WAY GAY, human resource personnel pointed out the difference between wearing a slogan and making sexual advances or requesting sexual favors. Managers then added same-sex issues to their company training programs.

On the other hand, many companies don't understand. "They're not homophobic; they're homo-ignorant," explains Jane Moyer, formerly a human resource manager at Xerox Corp., now a Cornell University graduate student in industrial and labor relations. "They know the legal definitions, but they can't quite grasp what that means. Same-sex sexual harassment is too weird for them, or they've never thought about it. There are no paradigms to relate to."

The companies that do get it, Moyer continues, are those with "one or two enlightened managers who are able to relate human behavior with policies, mission statements, and laws." Those companies are often the ones with active gay and lesbian employee groups, such as GALAXE (Gays and Lesbians at Xerox), which Moyer chaired. She says with pride, "We were able to show the company that this is all about legal issues and has nothing to do with genders."

As a legal issue same-sex sexual harassment was high on the list of important Supreme Court cases. So what will happen now that the court has decided? Not much, predicts Gore. "Policies will be updated to be gender neutral, but I'm not sure, realistically, what will happen afterward. What I would like to see is to change the language completely--take out sexual and just call it workplace harassment, period."

Seitz sees an interesting, if unintended, effect of the decision. "If a company has to update its sexual harassment policy to include sexual orientation, does that mean they also have to include a blanket nondiscrimination policy about orientation?" he asks. "Whatever the outcome, it will be harder and harder for businesses not to address sexual orientation issues in general. Harassment and nondiscrimination go hand in hand."

RELATED ARTICLE: What the decision says

Excerpts from Justice Antonin Scalia's opinion on same-sex harassment

Title VII's prohibition of discrimination "because of ... sex" protects men as well as women ... and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race ... If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of ... sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.

As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.

The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment ... We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace--such as male-on-male horseplay or intersexual flirtation--for discriminatory "conditions of employment."

A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field--even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.