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More men filing sexual harassment, bias claims

Reduced stigma, economic woes seen fueling charges


More men are alleging sexual harassment in the workplace, a trend many attorneys expect to continue.

Observers say driving the increase in male claims of sexual harassment as well as sex-based discrimination in the workplace in general is men's greater awareness of their rights under U.S. law. They say the ailing economy may be a factor as well.

Men and women are protected from sexual discrimination under the Civil Rights Act of 1964. Victim and harasser can be a woman or a man and can be the same gender, according to the U.S. Equal Employment Opportunity Commission.

Men accounted for 19.7% of all sex-based charges filed with the EEOC through fiscal year 2009. Within the subset of sexual harassment charges, charges filed by men accounted for 16% of the total, up from 8% in 1990, according to the EEOC (see box, page 17).

Although not a sexual harassment case, workplace sex-based discrimination received attention when Paul Tarascio, a former stage manager for NBC's “Late Night With Jimmy Fallon” show, alleged in July that he was demoted because Mr. Fallon prefers “to take direction from a woman,” according to the complaint filed with the EEOC.

While some attorneys say their practices have not handled any sex-based discrimination or harassment charges filed by men, others say they have and expect the number to increase.

“I've definitely seen an uptick in sex discrimination claims brought by men,” said Martha J. Zackin, of counsel with law firm Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C. in Boston.

“We've just had more clients calling me, where either men have complained internally they didn't get a promotion, they didn't get a job, or a woman got a promotion or a job they wanted ahead of them, or they were laid off and a woman wasn't,” Ms. Zackin said. “Of course, they were better qualified, they say, and therefore must have been discriminated against.”

“I think, in part, the job market is driving it,” she said. “People don't always take responsibility for their own actions or performance, and the job market doesn't help that.”

Furthermore, said Ms. Zackin, as such complaints are publicized, there is less stigma attached to men who file a complaint. “People don't look poorly at a man who files a harassment charge if it's legitimate. So as it becomes more acceptable,” more men will take advantage of the law, she said.

“As employers are becoming more cognizant of the need to have a balanced workforce, I think men are becoming aware of their rights under the federal discrimination laws,” said Amy L. Bess, a shareholder with law firm Vedder Price P.C. in Washington.

In some cases, observers say men are accusing their employers of being more amenable to women taking time off for family responsibilities than men.

Laura J. Maechtlen, a partner with law firm Seyfarth Shaw L.L.P. in San Francisco, said some men are alleging that “they were not given equal amounts of parental leave or sick leave or time off from work. I think the general stereotype would be that men don't have the same care-giving responsibilities as women, which we all know isn't true in this day and age.”

Some say they believe one factor behind the sexual harassment claim increase by men is the failure of the proposed federal Employment Non-Discrimination Act to be passed by Congress. The act would bar discrimination based on sexual orientation.

Nesheba M. Kittling, an associate with law firm Fisher & Phillips L.L.P. in Chicago, said because sexual orientation is not protected under federal law, “basically the only way (gay men) can assert a claim is through sexual harassment or sexual discrimination” charges.

However, Washington-based EEOC senior attorney adviser Ernest Haffner said the courts are recognizing the issue of gender discrimination even if sexual orientation discrimination has not been specifically outlawed.

He pointed to the U.S. Supreme Court's 1989 decision in Price Waterhouse vs. Ann Hopkins, in which the court ruled that a gender stereotyping claim could be filed under Title VII of the Civil Rights Act in a case in which a woman allegedly was denied a partnership because she did not act feminine.

In addition, in the 2009 decision in Brian D. Prowel vs. Wise Business Forms Inc., the 3rd U.S. Circuit Court of Appeals in Philadelphia said a gay man is not necessarily barred from filing a sexual discrimination claim under Title VII (BI, Sept. 7, 2009).

“These cases are covered under Title VII even though there may be evidence of sexual orientation discrimination as well,” Mr. Haffner said.

Mr. Haffner also pointed to Carl Thomas Sassaman vs. David Gamache, a decision last year by the 2nd U.S. Circuit Court of Appeals in New York. In that case, the court ruled that a supervisor's belief that men have a propensity to commit sexual harassment, and his failure to properly investigate a sexual harassment charge lodged against the plaintiff, could be inferred by a jury to be discrimination based on gender stereotyping.