There has been a lot of news coverage lately of Rep. Eric Massa’s resignation and apparently related allegations of harassment of male staffers. One question that has been asked several times is whether Massa is gay. In response, some have dismissed such questions as inappropriate. (I was going to link an article but most have inappropriate language, so Google it if you don’t believe me). Interestingly enough, if this drama were being played out in the context of a sexual harassment lawsuit, the question of the alleged same sex harasser’s sexual orientation would be relevant.
In same-sex workplace harassment cases, demonstrating that the harassing conduct was tinged with offensive sexual connotations is not sufficient to prove the discrimination was “because of sex,” which is an essential element. Title VII forbids only discrimination because of sex. Courts have held that there are three ways that a plaintiff alleging same-sex sexual harassment can demonstrate that the harassment was because of sex:
- The harasser was motivated by sexual desire;
- The harasser was expressing a general hostility to the presence of one sex in the workplace; or
- The harasser was acting to punish the victim's noncompliance with gender stereotypes.
Based on everything I’ve read about the Massa situation, if a male staffer was to pursue a claim, the first approach above (i.e. motivated by sexual desire) would be the natural choice. Let me know what you think – mchumley@kmklaw.com.
- Partner
Mark Chumley has experience representing clients in all aspects of labor and employment law. He has handled numerous cases before state and federal courts and state and federal civil rights agencies, including claims involving ...
Topics/Tags
Select- Labor & Employment Law
- Labor Law
- Coronavirus
- Employment Law
- Department of Labor
- Arbitration
- Discrimination
- Employee Benefits and Executive Compensation
- Religion Discrimination
- IRS
- Disability Discrimination
- NLRB
- Litigation
- Race Discrimination
- Employer Policies
- Americans with Disabilities Act
- OSHA
- Social Media
- Retirement
- Sexual Orientation Discrimination
- Accommodation
- National Labor Relations Act
- National Labor Relations Board
- ERISA
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- Wage & Hour
- EEOC
- ACA
- Affordable Car Act
- ADAAA
- NLRA
- Title VII
- Unions
- Employer Rules
- Federal Arbitration Act
- Sexual Harassment
- Technology
- Privacy
- 401(k)
- Transgender Issues
- FMLA
- Workplace Accommodations
- Disability
- Workplace Violence
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Paycheck Protection Program
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- Benefits
- E-Discovery
- Evidence
- Family and Medical Leave Act
- Environmental Law
- Overtime Pay
- Privacy Laws
- Representative Election Regulations
- Department of Justice
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Affirmative Action
- Electronically Stored Information
- Equal Opportunity Clause
- Telecommuting
- Compensable Time
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Return to Work
- Seniority Rights
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Classification
- Fair Minimum Wage
- Federal Minimum Wage
- Misclassification
- State Minimum Wage
- Wage Increase
- Confidentiality
- Disability Leave
- Equal Pay
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Retaliation
- Social Media Content
- Taxation
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
Recent Posts
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 3/6/23
- The Practical Employment Law Podcast: E.W.A. - Straight Outta Payroll
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 1/23/23
- The Practical Employment Law Podcast: The Obligatory New Year's Episode
- The Practical Employment Law Podcast: The Obligatory Holiday Party Episode
- Independent Contractor Classification - Deadline to Submit Comments on the Notice of Proposed Rulemaking is Approaching
- The Practical Employment Law Podcast: Thanksgiving for Plaintiffs' Attorneys
- Why Every Employer Including Those Outside NYC Should Stay Abreast of the NYC Pay Transparency Law
- The Practical Employment Law Podcast: Interview with Author and Lawyer Steven Mitchell Sack
- The Practical Employment Law Podcast: Are You Caught in a TRAP?