The EEOC Receives More Male Complaints of Sexual Harassment: Bad News?

By SHERRY F. COLB

Thursday, Mar. 01, 2007

Last month, the Federal Equal Employment Opportunity Commission ("EEOC") released job discrimination statistics revealing that complaints are on the rise for the first time in four years. About a third of the complaints concern gender-based harassment, and a record 15.4 percent of the harassment cases were filed by men, a majority of whom apparently allege that they were subject to male-on-male harassment.

On the surface, this might sound like a lot of bad news, especially if we assume that there has been no substantial increase in the absolute number of employed individuals. But there is another way to look at the data. More complaints could simply reflect a greater willingness on the part of victims to report discrimination, rather than an increase in actual instances of discrimination.

Why would a larger fraction of discrimination victims be willing to come forward and complain? The EEOC's data do not say directly, but at least for the men, a greater willingness to report discrimination could reflect a change in workplace and social norms. If so, that would be good news.

Title VII: The Federal Law Prohibiting Workplace Sex Discrimination

The federal law that governs workplace discrimination on the basis of sex (as well as race, color, religion, and national origin) is Title VII of the 1964 Civil Rights Act ("Title VII"). Under Title VII, an employer may not discriminate on the basis of sex with respect to hiring, promotion, termination, or conditions of employment.

A straightforward example of prohibited job discrimination is an employer's decision to pay a male employee more money than a female employee, even though the man and the woman perform the very same tasks (and their jobs require the same level of education, prior experience, and skill).

Wages and salary are not, of course, the only conditions of employment. As everyone who has held a variety of jobs knows, there are many intangibles that can make the difference between a great (or at least tolerable) position - whatever the salary might be - and a job that occasions daily dread and anxiety. One factor is the environment in which an employee carries out her responsibilities. Are people collegial, supportive, and cooperative? Are they nasty, cold, and undermining? Do they look for sexual favors in exchange for career advancement?

A boss may - without violating any law - be generally abusive, and colleagues may regularly sabotage each other's efforts. Much employment in the U.S. is "at will," which means that employers can hire or fire whomever they please, pay him or her as inequitably as they wish, and tolerate relentlessly obnoxious behavior, provided the employers do not discriminate along a prohibited dimension in so doing. Much of what makes many employees curse the day they were born is accordingly perfectly legal.

Creating or tolerating a discriminatorily hostile work environment, however, violates Title VII. If an employee suffers at work and suspects that the suffering occurs on account of her sex (or race, or other characteristic listed in the statute), then she can bring a complaint to the EEOC and may ultimately go to court to compel her employer to remedy the situation.

Unlawful Discrimination Works Both Ways

When Congress first passed Title VII, people understood that it was designed to provide protection for members of disadvantaged groups from mistreatment on account of that membership.

Most centrally, at the time, employers would risk a lawsuit if they excluded or unfairly terminated African-American employees. In contrast, people did not immediately envision Title VII as a source of rights for white people.

Similarly, in the case of sex - a category added at the last minute, in a failed bid to motivate Congress to vote against the whole bill - no one initially viewed Title VII as a source of rights for men. Times change, however. The terms of the statute prohibit discrimination on the basis of sex, and that means that men too receive protection from discrimination.

At the most basic level, this means that if an employer hates men, hires almost none, and mistreats those whom she does hire, then that employer acts in violation of Title VII. It also means something more subversive: At least in theory, it can be unlawful for an employer to foster an environment that punishes men and/or women for failing to conform to their assigned gender roles.

The U.S. Supreme Court acknowledged this theory in Price Waterhouse v. Hopkins. There, a female senior manager was passed over for partner and subsequently advised, when told of the decision, that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court recognized that she had a valid complaint of sex discrimination. Though she was not passed over for partner simply for being female, she evidently did not make partner because she was deemed too "masculine," a quality that would not have posed similar difficulties for a male candidate.

By the same token, a male employee who suffers a hostile work environment because of an employer's (or fellow employees') perception that he lacks masculinity would have a valid cause for complaint as well.

More Men Complaining of Sexual Harassment: Two Possibilities

As noted above, we know from the EEOC statistics that an increasing number and percentage of men are bringing formal complaints against their employers for sexual harassment in violation of Title VII. But what do the rising numbers mean?

One form of sexual harassment - called "quid pro quo" - occurs when an employer attempts to exact sexual favors in exchange for job advancement (or when an employer allows other employees to do so with impunity). It is possible, then, that there are more predatory women and men who have begun to pursue subordinate male employees for sexual congress.

Though conceivable, this seems unlikely. First, it appears that a majority of the harassment cases are of men against other men, a fact which necessarily diminishes the role of predatory women in the story. Second, workplaces, unfortunately, remain sufficiently homophobic to preclude widespread attempts by male superiors to exchange job benefits for sex with their male subordinates.

The More Likely Offense: Men Punishing "Unmasculine" Men

So who is carrying out violations of Title VII against males - if not predatory men or women looking for sex? The answer is that men are likely singling out for mistreatment those of their fellow male employees who fail to conform to masculinity norms.

If in fact there is an increase in this sort of behavior, then that is surely bad news. Neither men nor women should have to undergo gender-based bullying at work. As with race, part of what sex discrimination is about is policing the boundaries between men's and women's supposed "places." Making men behave "like men" and women "like women" is a way of ensuring that equality can never fully flower.

More Discriminatory Behavior or a Greater Willingness to Challenge It?

There is another possibility. Maybe there has not actually been an increase in male-victim harassment at work. Perhaps instead, the amount of reporting of male-victim sexual harassment has increased steadily over the last few years. I suspect this may be true, because men and boys have been bullying what Arnold Schwarzenegger famously called "girly men" for the entire time that Title VII has been the law.

If men are not bullying other men any more than they always have, then why might there be an increase in complaints? Because Title VII introduced a relatively new norm to the workplace: Treat people equally well, even if some of them are men, others women, some black, others white, etc. New norms always encounter some resistance.

One kind of resistance takes the form of a failure to comply with the mandate: In this instance, despite Title VII, some employers have continued to tolerate and promote a hostile work environment for women, or for men who "act like" women.

A second, underappreciated, form of resistance comes from the victims of harassment themselves. Having internalized the norm approving their mistreatment, they are reluctant to complain, for fear of alienating people and becoming even more outcast than they already are. (Of course, some may also be reluctant to complain due to fear of retaliation for their complaint stemming from the first kind of resistance - though that too is illegal under Title VII - or career consequences as word of their complaint spreads, as Scott Moss elaborated in his earlier column.)

Particularly in the case of a man who suffers bullying because he "acts like a girl," what could be more "girly" than going to the EEOC to "tell on" the boss? Moreover, the very act of complaining about the bullying could feel - to many - almost as humiliating as the bullying itself.

The fact that more male complaints of sexual harassment are making their way to the EEOC may suggest, then, that the rightfully subversive counternorms of Title VII have begun to set in. Rather than "believe" superiors who tell them that they should act like "men" or accept the consequences, an increasing number of men may be standing up for their right to be who they are, without apology. And significantly, an increasing number of men may be telling the EEOC about their bullies' behavior and asking that such behavior be recognized for what it is - sex discrimination, in violation of Title VII.

Overcoming the victim shame associated with male-on-male harassment may be the first step to being liberated (and to liberating others - male and female alike) from such reprehensible treatment.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in March 2007.

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