Sexual Harassment Ruling Charts New Legal Frontier

One day after Mark S. Anderson went to work as a stockbroker trainee for Cantor Fitzgerald & Co. in Century City, he says he was greeted with a nasty surprise: a doctored photo on the lunchroom bulletin board depicting Anderson having three-way sex with two other men.

And that, according to a lawsuit later filed by Anderson, was just the beginning of the extraordinary, sexually charged psychological abuse he endured during his 13 months at the investment firm.

Later on, as Cantor Fitzgerald itself acknowledges, a homemade video was shown at a company meeting that, Anderson says, humiliated him by labeling him a homosexual and suggesting that he build his roster of customers by soliciting gays.

That video also showed co-workers--including a white man wearing a bag over his head with a black face drawn on--taking Anderson’s Alfa Romeo sports car to a body shop. Homosexual epithets, including “Rump Ranger” and “1-800 Butt Boy,” were painted on the car’s side and back in white.

The Anderson case, settled in a confidential agreement in December, is a dramatic example of an emerging legal frontier: same-sex sexual harassment lawsuits. This once-obscure area of the law was spotlighted Wednesday when the U.S. Supreme Court reinstated a suit by an oil rig roustabout named Joseph Oncale who claims he was sexually harassed by male supervisors while on the job in the Gulf of Mexico.

Some legal experts say that the Supreme Court--by declaring that workers can sue for sexual harassment under federal civil rights law even if the alleged harassers are of the same gender as the victim--will unleash a burst of litigation. Lawsuit-wary employers, meanwhile, are expected to respond by expanding their anti-harassment policies and training programs.

The high court’s opinion was written to prevent simple “teasing” or “roughhousing” from being construed as illegal same-sex sexual harassment, but “the difference between legal horseplay and illegal harassment is a guessing game. So, cases will be filed on the basis of rough horseplay between the guys,” predicted Frank Cronin, an Irvine attorney who represents companies in employment law disputes.

More broadly, legal authorities say the ruling will intensify a nationwide tug-of-war over workplace legal rights currently being played out before judges, juries and the court of public opinion.

While plaintiffs’ attorneys and their clients keep pushing the envelop of employment law to seek redress for alleged workplace wrongdoings such as same-sex sexual harassment, a backlash is brewing. It burst into the open last summer when a jury awarded $26.6 million to a former Miller Brewing Co. executive fired for telling a female co-worker about a racy “Seinfeld” episode.

Largely for that reason, the Supreme Court’s Oncale decision, while significant, isn’t likely to rival what the Anita Faye Hill-Clarence Thomas showdown did 6 1/2 years ago in spurring sexual harassment lawsuits. Since 1991, sexual harassment claims overall have more than doubled.

Observers also contend that not many men, the usual targets of alleged same-sex sexual harassment, are willing to risk the humiliation of going public with a complaint that they were victimized by another man.

“Male behavior is dominated by the John Wayne model. Can we imagine John Wayne filing a sexual harassment suit against another guy?” asked Frederick R. Lynch, a sociologist at Claremont McKenna College who has written books critical of some workplace affirmative action and diversity programs.

What’s more, state laws and court rulings have long been on the books in California and elsewhere that protect workers against same-sex sexual harassment. They include statutes prohibiting sexual battery and assault, intentional infliction of emotional distress, discrimination based on sexual orientation and other civil rights laws.

Still, lawyers predict that the attention generated by the Oncale case, by raising sensitivities and recognition of the issue, will change American workplaces while also triggering more litigation.

In the past, neither most workers nor most managers regarded same-sex sexual harassment as a legal problem, said Stephen A. Ebner, a Calabasas plaintiffs attorney specializing in employment law.

Many workers subjected to that sort of abuse, Ebner said, “know it’s harassment, but they don’t know that it’s covered under the law.” He said they commonly call him and open the conversation by saying, “I don’t know if I have a case, but. . . . “

As with male-female sexual harassment, same-sex sexual harassment comes in two main varieties: quid pro quo and hostile environment. Quid pro quo harassment is relatively easy to recognize: It includes such actions as firing workers or denying employees promotions because they refuse to have sex with their bosses. That’s plainly illegal.

Hostile environment sexual harassment, on the other hand, can be more subtle. In opposite-sex hostile environment sexual harassment, it often involves telling vulgar sexual jokes, displaying pornography or otherwise using sexual innuendo to create a work environment that undermines a worker’s ability to perform a job.

But in same-sex situations, legal experts say, it’s harder to identify where workplace horseplay crosses over into illegal conduct because of the lack of a consensus among the public on what is improper behavior.

The blurriness was cleared up only somewhat by the Supreme Court, said Beatrice Dohrn, legal director of the Lambda Legal Defense and Education Fund, a gay and lesbian rights organization and the author of an amicus brief in the Supreme Court case that supported Oncale’s position.

“The court seems to be focused on whether men and women are treated differently” because of their gender, she said. “That may mean that some forms of horseplay will be barred if they are sufficiently severe and abusive and meted out according to sex--in other words, if, say, the horseplay was exclusively toward men.”

From Wall Street trading floors to warehouse loading docks, workplace experts say, horseplay bordering on illegal harassment is common. “We’ve always seen it. It’s always been there,” said Freada Klein, a Cambridge, Mass.-based consultant on sexual harassment and workplace bias issues.

Typically, she said, it involves abusive locker room-type talk in which “one man puts another one down, and it is often laced with sex imagery and language. It’s talk about sexual prowess, sexual performance and frequency of sexual activity.”

Much of this legal “gray area” activity is deeply rooted in blue-collar settings where the atmosphere is more physical. Men jostling each other can be an “initiation rite,” said Harley Shaiken, a workplace expert at UC-Berkeley. “All of that is part of work culture.”

Shaiken recalled the time when he, as a young man, worked in an auto factory and he saw one worker sneak up behind a high-strung co-worker and “goose” him. “It wasn’t perceived then as same-sex sexual harassment. . . . Sensitivity is changing in this area, and the Supreme Court ruling in that regard could have a major impact on what takes place.”

Although sexually charged baiting and ridicule typically are involved in same-sex sexual harassment, homosexuality or sexual conquest aren’t necessarily part of the equation.

For example, Oncale and his alleged harassers--who, in one instance, are accused of pinning him down in the shower and shoving a bar of soap between his buttocks--all have said publicly that they are heterosexual.

Anderson, the former Cantor Fitzgerald trainee, has been silent on the issue of his sexual orientation, saying that it is irrelevant to his case.

But Anderson, 36, said that his co-workers at Cantor Fitzgerald apparently decided he was homosexual based on stereotypes: He noted that he never has been married, lived in West Hollywood when he joined the investment firm and had previously worked in the interior design business.

“There’s same-sex harassment all the time in the workplace, and to me it seems just as bad as a man harassing a woman,” said Anderson, who added that he was “emotionally devastated” by the making and showing of the video. “It ruined my career” in the investment business, said Anderson, now an industrial chemicals salesman.

Debra Walton, a managing director at Cantor Fitzgerald’s New York headquarters, countered that the video “was an example of the sophomoric behavior that existed in the [Century City] office, but I’m confident that it was not in any way a situation of harassment.”

Still, Walton said, “as a result of that situation, we have gone to significant lengths to ensure that everyone in this organization understands what the management expectations are with respect to workplace behavior.”

Among other things, she said, the company has retained outside consultants “who have worked with us to incorporate workplace sensitivity programs.”

Social critics and some management authorities, meanwhile, express concern about what they regard as both excessive anti-harassment programs and the courts’ poorly conceived expansion of civil rights protections. They say that freedom of speech is being trampled by political correctness, undermining creativity, spontaneity and morale in the workplace.

A California Court of Appeal ruling in 1993 recognizing same-sex sexual harassment as illegal helped make the state a leader in this area of the law. More recently, a Los Angeles Superior Court jury last April awarded more than $4 million in damages to a former maintenance mechanic who said his boss--also a man and also avowedly heterosexual--would sometimes grope the mechanic’s genitals and use explicit language suggesting lewd sex acts. The case later was settled for an undisclosed, but reportedly smaller sum.

Then, last summer, the Los Angeles Police Department fired Michelle Myers, a veteran of nearly eight years, after another female officer complained that Myers lifted her own skirt, exposed her breasts and made lewd comments to the other officer while on the job. Myers couldn’t be reached for comment Thursday, but she previously has denied sexually harassing her former co-worker.

Solid research on the prevalence of same-sex sexual harassment is hard to come by, but some figures provide clues. For instance, a 1995 survey of 28,296 U.S. military personnel suggests that 7% of the women and 26% of the men were subjected to unwanted sexual attention from someone of the same gender while on the job over the previous year.

While not all of that conduct is serious enough to qualify as illegal same-sex sexual harassment, people are growing more sensitive to the issue.

And following the news from Wednesday’s Supreme Court ruling, if workers are subjected to what they consider offensive sexually charged behavior by someone of the same gender, Klein said, “they now have a name for it.”