Same-Sex Sexual Harassment Is Prohibited By Florida & Federal Law

In 1998, the U.S. Supreme Court held in Oncale v. Sundowner Offshore Services, Inc. that same-sex sexual harassment is unlawful under federal law. In Oncale, a male employee was subjected to sex-related taunts, forcible sexual actions against him, and physical assaults of a sexual nature. In affirming the trial court’s dismissal of the plaintiff’s case, the Fifth Circuit Court of Appeals held that federal law does not prohibit same-sex sexual harassment. The Supreme Court reversed the appellate court and reinstated the plaintiff’s case. The Supreme Court reasoned that it is not the sex of harasser or the victim that is important to a sexual harassment claim, but, rather what is important is that the victim must prove that the conduct occurred because of the victim’s sex.

Sexual harassment is actionable under Florida and federal law to the extent it occurs because of the victim’s sex. Under Oncale, a plaintiff bringing a same-sex sexual harassment lawsuit must prove that she was the target of the harassment because of her sex. Courts have recognized that proving same-sex sexual harassment occurs because of sex can sometimes be difficult. In Oncale, the Supreme Court explained that when the harasser and victim are of the opposite sex, it is reasonable to conclude or infer that the harasser is acting because of the victim’s sex. For example, when a man makes sexual remarks or sexual advances to a woman in the workplace, it is easy to conclude or infer that his behavior is motivated by her sex. Such a conclusion or inference is not as easily made when the harasser and victim are of the same sex. As a result, courts have identified several methods for proving that same-sex sexual harassment occurs because of the victim’s sex.

One way is for the victim to show that the harasser’s conduct was motivated by sexual desire or sexual attraction. For example, a female employee subjects a female victim to sexual remarks, sexual propositions, and physical touching of a sexual nature. Under such circumstances, the female victim is being targeted because of her sex and the conduct is linked to her sexuality.

Another method is for the victim to show that the harasser’s conduct was motivated by hostility to the presence of one sex in the workplace or in a particular job position. For example, a male dentist might believe that men should not be dental hygienists and makes harassing remarks to a male dental hygienist with whom he works. Similarly, a female college athletic director might believe that women should not coach men’s teams and makes harassing remarks to a female coach with whom she works.

Another way is for the victim to show that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. Courts have determined that harassment on the basis of sex stereotypes satisfies the “because of sex” requirement and constitutes actionable sexual harassment. For example, male employees referring to a male employee as she and her, mocking him for walking and talking like a woman, and calling him sweetheart and doll is a form of same-sex stereotyping harassment.

We have extensive experience representing employees who have been the victim of same-sex sexual harassment and other types of sexual harassment in the workplace. If you have been the victim of sexual harassment or have any questions regarding sexual harassment in the workplace, please contact our office for a free consultation.