More men filing sexual harassment claims

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As unemployment numbers have climbed during the recession, so has the number of sexual harassment claims filed by men.

Labor and employment attorneys suggest that there is a natural link between the two, as more men deal with financial uncertainty related to job loss.

“Men have been hit harder than women during the recession and I think people do what they can to support themselves,” said Quarles & Brady (http://www.quarles.com/) attorney Pamela M. Ploor. “If more men are being affected, I think they look at legal claims as a possibility for generating income for themselves or their family.”

According to the Equal Employment Opportunity Commission (EEOC), (http://www.eeoc.gov/) almost a quarter of the 225 sexual harassment charges (52) filed in Wisconsin in fiscal year 2009 were by men. Only 13 percent of the 218 claims in fiscal year 2008 came from men.

Nationally, the numbers are on the rise as well, with men accounting for 16 percent of claims filed in fiscal years 2008-09, compared to approximately 12 percent a decade ago.

Attorney Thomas C. Pence is former chair of Foley & Lardner’s (http://www.foley.com/) Labor & Employment Practice and said in his experience, most claims are filed by men who have been fired or are concerned about losing their job.

But in his representation of employers, Pence said the majority of claims turn out to be invalid, in part because with more terminations in the last few years, there is simply greater motivation to file a claim.

“Frankly, the economy has been so bad, people are more worried about what happens at work, regardless of the merits of claims,” he said. “People are thinking more about trying to assert rights in the workplace to protect jobs.”

Ploor, who also defends employers in harassment cases, said the types of claims filed by men she sees tend to fall into two categories.

Some have little or no merit, while others often involve a consensual relationship with a co-worker or supervisor that ended poorly.

With a 300-day window to file a claim, Ploor said more men might be willing to allege harassment if a male-male or male-female relationship went south and the employee was fired or at risk of losing his job.

“The overlay of the recession might have the company engaging in some reorganization and that breakup four months ago looks different now than it did then,” she said. “Was the person let go because he ended a relationship or because of reorganization?”

Recession aside, New Berlin employee attorney Alan C. Olson said men are often “swimming upstream” with sexual harassment claims.

In 1998, the United States Supreme Court in Oncale v. Sundowner Offshore Services, (523 U.S. 75 (1998), ruled that “sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.”

Despite the ruling more than a decade ago, Olson said sexual harassment claims by men are still hard to bring.

“In my experience, they are difficult,” he said. “There is a built-in bias that Title VII was not enacted to address this particular evil in the first instance, even though the Supreme Court recognized it as an extension from the original intent of the law.”

Olson said sexual harassment claims by men can be won and he looks for certain elements when pursuing a claim, such as whether the employee notified internal supervisors of the problem and that the actions in question were repetitive and adversely effected job performance.

He added that the conduct need not be based on sexual intent or physical contact, but an isolated remark will not be enough to sustain a claim.

In a down economy, an employer looking to downsize may opt to eliminate employees that are socially problematic in the workplace, he said, which could lead to a viable claim.

“So an employee who has complained about a co-worker’s conduct selected for elimination for that reason, would give rise to liability under Title VII,” Olson said.

Regardless of the validity of a harassment claim, Pence said there is less of a stigma attached to men who file sexual harassment claims now.

People who were reluctant to speak up a decade ago are more willing to do so today, he said, in part because businesses are more proactive in training employees on proper and improper work behavior.

Ploor said that in the past, there was a sense that men simply had a higher tolerance for vulgar language or sexual innuendo.

“Often times the stereotype was ‘shouldn’t a male employee be flattered if someone expresses interest’,” she said. “But at the end of the day, harassment is about power and not interest in someone.”

Jack Zemlicka can be reached at [email protected].