If the same person sexually harasses a man and a woman, does that cancel each other out?


MicroZesTo, CC BY-SA 3.0, via Wikimedia Commons

If you’re asking that question to the U.S. Equal Employment Opportunity Commission, the answer is no.

At the end of last week, the EEOC announced that it had sued two companies allegedly violating federal law when they failed to prevent and correct ongoing sexual harassment and retaliation.

Neither claim is novel in EEOC circles, but the allegations of sexual harassment are somewhat unique.

According to the press release, the company subjected both female and male workers to ongoing verbal and physical sexual harassment. Specifically, the EEOC accused the chief operating officer of “frequent and offensive unwanted groping and touching of their bodies, unwelcome sexual advances and comments about their appearance, and inappropriate questions about employees’ sexual preferences and sexual activities.”

So the EEOC filed a lawsuit alleging that such conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrim­ination “because of sex.” The EEOC’s suit seeks compensatory and punitive damages for a class of aggrieved individuals and injunctive relief intended to prevent and correct discrimination.

But, if someone sexually harasses both men and women, how could the alleged harasser’s behavior be “because of sex?”

The Supreme Court had something to say about this in 2020 in Bostock v. Clayton County. The question in Bostock was whether Title VII’s prohibition against employment discrimination “because of . . . sex” includes discrimination based on an individual’s sexual orientation. The Court concluded that it did.

But, Bostock further emphasized how Title VII focuses on the treatment of individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s. . . sex.” Justice Gorsuch, writing from the Court, clarified that employers cannot defend Title VII claims by arguing that they discriminate against both men and women because of sex.

“This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”

A plaintiff (or group of plaintiffs) alleging sexual harassment must still establish that the complained-of behavior was “because of sex.” But employers (and their lawyers) clinging to the notion of an “equal opportunity jerk” defense should know that it likely won’t apply in lawsuits like the one the EEOC has filed.


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