EEOC sees spike in male sexual harassment claims
The most recent EEOC statistics show that the number of sexual harassment complaints by men is growing. In fiscal 2009, there were 2,094 harassment charges filed by men. Those claims made up over 16 percent (more than one of every six) of all sexual harassment claims handled by EEOC.
The EEOC does not keep a record of the sex of the alleged harassers, but it is apparent that an increasing number of sex harassment claims filed by men are male-on-male cases. Those cases range from clear-cut unwelcome sexual advances to locker-room type behavior, including vulgarity and horseplay with sexual connotation. Often, there is bullying and sexual groping alleged.
Some experts believe that the extent of the presence of such sexual harassment is not fully represented by the number of claims filed. That under-reporting may be due to the stigma associated with men being victims of other men. In addition to the potential humiliation, men may actually fear physical retaliation in some cases if they report or refuse to allow the unwelcome conduct.
Men who feel that they are victims of sexual harassment may tend to view their situation as a no-win dilemma. They could appear to be unmanly if they are claiming harassment by a male and if they are being harassed by a female, they may be viewed as weak if they cannot take care of it themselves. That can cause them to be reluctant to report what is occurring in their workplaces. Men also may, perhaps correctly, fear that a jury will not be as sympathetic toward them as it would be toward a similarly-situated female victim.
There may be some correlation between sexual harassment claims filed by men and the economic recession. The recession has resulted in almost twice as many men losing their jobs as women according to the U.S. Bureau of Labor Statistics. A statistical link can also be seen between the increase in jobs lost in some states and in the increase in charges filed in those states. Whereas in the past, when jobs were more available, men (and women) may be chosen to simply change jobs rather than file a sexual harassment complaint. When jobs are more scarce, they may choose to endure the harassment or to file a complaint.
Employers should continue to be certain that their anti-harassment policies are in keeping with the latest court decisions and EEOC positions. It is also advisable to conduct periodic training and education sessions for supervisor and employees. Focus should be placed on all types of illegal harassment, including religion, national origin, disability, race and age.
EEOC proposes regulations on “reasonable factors other than age” defense
The EEOC has proposed regulations defining the “reasonable factors other than age” defense to be consistent with recent U.S. Supreme Court decisions in the area. The proposed rule explains that “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances.” It is one that would be used in a like manner by a prudent employer mindful of its responsibilities under the ADEA. A “prudent” employer “knows or should know that the ADEA was designed in part to avoid the application of neutral employment standards that disproportionately affect” employment opportunities for older persons. “Accordingly, a reasonable factor is one that an employer using reasonable care to avoid limiting the employment opportunities of older persons would use.”
The proposed rule provides that an employer asserting the “reasonable factor other than age” (RFOA) defense must show its challenged employment practice was “reasonably designed to further or achieve a legitimate business purpose and was reasonably administered to achieve that purpose.” The EEOC proposal includes a non-exhaustive list of relevant considerations in deciding whether an employment practice is “reasonable” within the meaning of the defense. These considerations include whether the employment practice and its implementation are “common business practices”; the extent to which the factor is related to the employer’s stated business goal; whether the employer took steps to define the factor accurately and apply the factor fairly; whether the employer assessed the adverse impact of its practices on older workers; the severity of harm to older individuals; and whether the employer had other options available and why it selected the option it did.
The EEOC gives some examples of how its criteria would work, such as where an employer is downsizing for business reasons. Employers are cautioned against giving unfettered discretion to low level supervisors to decide who has such aptitude or skills, such as the ability to learn new computer skills, where such aptitude or skills might rely on age stereotypes. Employers must be particularly careful to avoid giving such discretion to rate employees on criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills. Employers are urged to use evaluation criteria “as objectified to the extent feasible.”
The EEOC in its proposal contrasts certain more stringent requirements under Title VII, as opposed to the ADEA. Under the ADEA, those asserting the RFOA defense need not prove “business necessity” to an adverse impact claim. However, under Title VII, where an employment criterion adversely impacts a protected group, an employer must show that the employment practice causing the disparate impact based on things such as race or sex was necessary and that there existed no less discriminatory alternatives. In contrast, in an age discrimination case, an employer need only show that its use of a factor causing adverse impact is “reasonable,” and the employer need not choose the option with the least discriminatory impact.
The EEOC has proposed regulations defining the “reasonable factors other than age” defense to be consistent with recent U.S. Supreme Court decisions in the area. The proposed rule explains that “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances.” It is one that would be used in a like manner by a prudent employer mindful of its responsibilities under the ADEA. A “prudent” employer “knows or should know that the ADEA was designed in part to avoid the application of neutral employment standards that disproportionately affect” employment opportunities for older persons. “Accordingly, a reasonable factor is one that an employer using reasonable care to avoid limiting the employment opportunities of older persons would use.”
The proposed rule provides that an employer asserting the “reasonable factor other than age” (RFOA) defense must show its challenged employment practice was “reasonably designed to further or achieve a legitimate business purpose and was reasonably administered to achieve that purpose.” The EEOC proposal includes a non-exhaustive list of relevant considerations in deciding whether an employment practice is “reasonable” within the meaning of the defense. These considerations include whether the employment practice and its implementation are “common business practices”; the extent to which the factor is related to the employer’s stated business goal; whether the employer took steps to define the factor accurately and apply the factor fairly; whether the employer assessed the adverse impact of its practices on older workers; the severity of harm to older individuals; and whether the employer had other options available and why it selected the option it did.
The EEOC gives some examples of how its criteria would work, such as where an employer is downsizing for business reasons. Employers are cautioned against giving unfettered discretion to low level supervisors to decide who has such aptitude or skills, such as the ability to learn new computer skills, where such aptitude or skills might rely on age stereotypes. Employers must be particularly careful to avoid giving such discretion to rate employees on criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills. Employers are urged to use evaluation criteria “as objectified to the extent feasible.”
The EEOC in its proposal contrasts certain more stringent requirements under Title VII, as opposed to the ADEA. Under the ADEA, those asserting the RFOA defense need not prove “business necessity” to an adverse impact claim. However, under Title VII, where an employment criterion adversely impacts a protected group, an employer must show that the employment practice causing the disparate impact based on things such as race or sex was necessary and that there existed no less discriminatory alternatives. In contrast, in an age discrimination case, an employer need only show that its use of a factor causing adverse impact is “reasonable,” and the employer need not choose the option with the least discriminatory impact.
Jerome Pinn is an attorney in the Knoxville office of Wimberly, Lawson Seale & Daves. He welcomes your comments on this topic or other employment law issues, and can be reached at (865)546-1000.
