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Workplace harassment cases in nontraditional areas on the rise

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ATLANTA—Nontraditional harassment claims are growing in frequency and severity despite a steady reduction over the past 15 years in the total number of workplace harassment and discrimination charges.

To address that trend, employers should pay more attention to same-gender harassment claims and sexual harassment claims filed by men, for example, and treat them as seriously as traditional harassment claims, according to an employment attorney speaking at the Society for Human Resource Management's 2012 Conference and Exposition held last week in Atlanta.

In addition, employers should evaluate their policies on workplace bullying, another speaker said. Although the legal framework for bringing bullying claims is less clear than harassment claims, it is possible for workers to use laws as the basis for bullying claims, she said.

Workers in the United States filed 11,364 sexual harassment charges in 2011, according to the U.S. Department of Labor, down 28% from the 15,889 recorded in 1997.

However, the percentage of those claims filed by men has increased steadily during that same 15-year period, to 16.3% in 2011 from 11.6% in 1997.

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Harassment claims made on the basis of other federally protected traits also have increased in recent years, including claims based on an employee's military service, skin tone and religious customs.

“For years, I had been doing the standard gamut of race-related, gender-related claims, but every so often I would get things that were a little bit unusual,” said Matthew Effland, a Los Angeles-based shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C. “After doing a little digging, I was surprised to find out just how much things had changed.”

For sexual harassment claims by male employees, typically it is a female co-worker or superior who is alleged to have committed the transgression, Mr. Effland said.

“Legally speaking, you couldn't come up with a situation that's easier for a company to deal with,” he said. However, employers often fail to appreciate the seriousness of male victims' harassment claims, he added, mistakenly assuming if the allegedly inappropriate behavior “isn't welcome on some level today, it was probably welcome at some point in the past.”

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“In the courtroom, it's not going to matter whether it was a man harassing a woman or vice versa,” Mr. Effland said. “If a jury believes that someone was being treated unfairly, they're going to hit the company and they're going to hit them hard.”

Same-sex sexual harassment and discrimination claims also are more common, Mr. Effland said, even though federal laws do not yet prohibit certain types of harassment typically alleged in these cases. For example, an employee who claims he or she is being ostracized or ridiculed by co-workers specifically because he or she is gay would not be protected under federal law.

However, Mr. Effland said, a growing number of plaintiffs in same-sex discrimination suits have been able to demonstrate in court that the ill treatment they received was based, at least in part, on their gender, and therefore was illegal under the federal protective statutes.

“The courts have told us that as long as the harassment is on the basis of someone's gender, the gender of the aggressor doesn't matter,” Mr. Effland said. “That's different than claiming that someone's harassing behavior is based on an alternative lifestyle. Don't confuse the two.”

Another troubling tendency among employers, Mr. Effland said, is the assumption that behavior alleged in a harassment or discrimination claim is attributable to natural interactions among same-sex workforces.

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“The common mistake is treating same-sex harassment as horseplay,” Mr. Effland said. “I get this all the time, especially my clients in the manufacturing business, the trucking business and other industries typically dominated by men. Employers need to be very careful, because as we've seen, the courts are becoming increasingly more likely to treat it as a crime.”

While recent surveys have revealed several unsettling trends for employers and their employees regarding bullying in the workplace, state and federal lawmakers have yet to reach a consensus on how best to address bullying as a matter of employment law.

“We're really talking about equal opportunity harassment,” said Catherine Mattice, president of San Diego-based Civility Partners L.L.C., a human resources consultancy. “Bullying and harassment might be the same thing in theory, but the law doesn't address everybody. If the person doesn't seem to be motivated by one of those protected classes, then their actions wouldn't be covered under the law.”

Although bullying behavior isn't an enforceable action under state or federal employment statutes, employers and individuals ultimately can be held liable for actions related to workplace bullying complaints, Ms. Mattice said.

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Under the right circumstances, a bully's behavior could meet definitions of assault or intentional infliction of emotional distress. Alternatively, if a bully's behavior routinely compromises an employee's safety on the job and the company does nothing to stop it, the victimized employee might be able to seek relief under state and federal occupational safety and health laws.

“As employers, if you only focus on the legally protected categories, that's a mistake,” Mr. Effland said. “What I see over and over are policies that outline a zero-tolerance stance on discrimination and harassment based on gender, race, nationality, age and all of the other protected categories under Title VII. But if you think about it, what that policy is really saying is that all other forms of harassment are just fine.”