While the common stereotype of sexual harassment is a male supervisor making unwanted advances toward a female employee, the EEOC in some well-publicized recent cases has underscored the liability companies face from male-on-male sexual harassment. To avoid ending up the target of a lawsuit or an EEOC investigation, in-house attorneys should make sure that sexual harassment training stresses that it is just as illegal for a man to harass another man based on sex as it is to harass a woman, employment attorneys say.
"Training should increase awareness that male on male harassment is prohibited by law," says Ron Chapman, Jr., a shareholder at Ogletree Deakins.
Chapman suggests emphasizing that a male employee's inappropriate behavior toward another man can cost him his career.
"Tell them it's not just women who can complain about you and put your career in jeopardy," he says. "Try to drive home the point that their career can be in jeopardy if they engage in this type of misbehavior, no matter who it is directed at."
Jeanine Gozdecki, a partner at Barnes & Thornburg, adds that it is important for supervisors understand that once they become aware of harassment, they have an obligation to address it, whether or not the employee complains. Employees frequently are reluctant to report sexual harassment out of embarrassment or because they don't want to get anyone in trouble, but supervisors may overhear comments or witness inappropriate behavior.
"Once a supervisor knows, he or she has an obligation to do something about it," Gozdecki says. "If it is found that the supervisor knew about it and didn't do anything, that creates liability."
In helping employees understand what constitutes harassment, Gozdecki offers some practical advice:
"Ask the question, 'Would you do it if your mother was standing next to you? Would you want someone to do it to your sister or brother?'"
Chapman adds that courts increasingly are looking at the content of sexual harassment training programs in weighing whether they mitigate a company's liability.
"It used to be enough to say, 'We did harassment training,'" he says. "Now courts are analyzing the substance and content of the training to make sure it's adequate."