In U.S. Equal Employment Opportunity Commission Appeal No. 01A35012 (Sep. 22, 2004),
the commission decided that a male postal worker was a victim of discrimination on
the basis of his sex when he was subjected to ongoing harassment resulting in a
hostile work environment. (Incidents of sexual harassment perpetrated against male
employees are relatively rare; nonetheless, the panel analyzed the case based on the
standard of proof used for all sexual harassment claims.)
The employee, at one of the postal service’s distribution centers, had discovered a
photograph with sexually explicit captions posted on the shop’s bulletin board.
Captions indicated that the woman in the photograph represented his wife. Later, an
explicit cartoon with his name on it was placed in his workstation. After coworkers
discovered his home address, his wife received a “valentine” containing lewd
references to an alleged sexual affair between her husband and another woman. The
harassment continued. After each incident of harassment, he notified his supervisors
about it; however, he never received a response. Eventually, he transferred to
another postal facility in an attempt to escape the harassment. But the couple
continued to receive sexually explicit cartoons in the mail and at work.
Though the Postal Service much later declared the problem resolved, he continued to
receive the explicit material. Throughout the period of harassment, the Postal
Service never identified individuals responsible for the conduct against the couple.
When he complained to supervisors, management would conduct “standup talks” with the
employees. However, the harassment went on.
In its analysis, the commission cited the Supreme Court case of Oncale
v. Sundownder Offshore Services, Inc. 523 U.S. 75, 78 (1998), for the
proposition that Title VII prohibited discrimination “because of . . .
sex.” The commission stated that, in certain circumstances, a male
employee subjected to unwelcome sexual conduct or comments by another
male employee constitutes a violation of Title VII. However, EEOC warned
that anti-discrimination statutes are not a “general civility code.” To
state a claim of sexual harassment, the conduct must be so objectively
offensive as to alter the conditions of the victims or be sufficiently
severe or pervasive to create a hostile work environment
The commission concluded that when coworkers sent sexually explicit
notes and letters to him, he was discriminated against because of his
sex. The commission found that the sexually explicit materials were
extremely offensive, causing the postal employee to transfer to another
facility to escape the harassment. The panel also found that the Postal
Service failed to take remedial action to end the harassment. When the
standup talks to employees proved ineffective, management failed to
consider more effective methods to end the harassment, said EEOC, also
finding that responsible management officials failed to make serious
attempts at ending the harassment, but instead blamed the victim as
being the source of the problem.
It’s unclear how the commission’s decision in this case affects prior
law holding that allegations of discrimination based on sexual
orientation do not state a claim under Title VII. In the employee’s
case, the harassment he experienced was not due to unsolicited sexual
desire from another male coworker. Indeed, there was no evidence
presented as to whether his harassers were men or women.
With this decision, the EEOC appears to suggest that, regardless of the gender of
the person alleging sexual harassment, so long as the sexual nature of the conduct
is severe or pervasive to create a hostile work environment, the complainant has
stated a claim of discrimination.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the
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