To state the obvious: yes, sexual harassment is not limited to men harassing women and yes, same sex harassment exists. Perhaps it is rarer, but it does happen. What almost certainly happens less often in 2020 than in prior decades—given the prevalence of corporate anti-discrimination policies, trainings, HR personnel and an increased cultural awareness—is brazen, unapologetic harassment, compounded by retaliatory termination. But that is what the Equal Employment Opportunity Commission (EEOC) alleges occurred in a lawsuit it filed on behalf of a terminated employee in central Florida in July.
And, since harassment is usually more subtle and less egregious than that alleged in this EEOC lawsuit, the lawsuit might be a good case study, a blueprint, a same sex sexual harassment archetype of the type of conduct employers must vigorously seek to prevent and avoid.
The complaint can be found here.
The EEOC alleges that Defendant Shelley’s Septic Tank (“Shelley’s”) and its owner, Mr. David Shelley, employed Richard Colon as a truck driver from February 2017 until May 2018. According to the EEOC, Shelley subjected Mr. Colon to a sexually hostile work environment, both through comments and physical contact.
The “unwelcome, sexually charged comments”, included Mr. Shelley:
- calling Mr. Colon “buttercup” near daily;
- calling Mr. Colon “pretty” after he shaved or trimmed his beard; and
- “plac[ing] his hands in a diamond around his penis and [telling] Mr. Colon to ‘back up to this’.”
The EEOC also alleged Mr. Shelley engaged in “unwelcome, sexual conduct and physical contact” against Mr. Colon, including:
- “stroking Mr. Colon’s arms and leg”;
- “blowing kisses at Mr. Colon”;
- “on one occasion, [using] a stick to poke Mr. Colon between his butt cheeks;” and
- On one day “grabb[ing] Mr. Colon’s buttocks over his clothes and [running] his finger between Mr. Colon’s butt cheeks.”
Despite his repeated objections to Mr. Shelley’s conduct, the harassment continued. And, Shelley’s did not have an HR department or harassment policy.
In response, Mr. Colon complained to the Sherriff’s office, which interviewed Mr. Shelley about the allegations. According to the EEOC, “Mr. Shelley repeatedly indicated that he planned to take action against whomever made the report. The deputies warned Mr. Shelley not to retaliate against the employee who made the report.” (emphasis added). Sidebar: outright announcing, to law enforcement, that you will retaliate against your employee. . .not smart.
Despite this express warning from the officers, on the first day Mr. Colon returned to work, after he filed the complaint with the Sherriff’s department, he was fired.
The principal federal law prohibiting an employer from subjecting employees to a sexually hostile work environment, or from retaliating against them, is Title VII of the Civil Rights Act of 1964, or “Title VII” for short. An annotated version of the law is available on the EEOC’s website here. Title VII has been amended several times, but for our purposes the relevant passages read:
(a) Employer practices
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
42 USC § 2000e-2(a)(1) (emphasis added).
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 USC § 2000e-3(a) (emphasis added).
Shelley’s and Mr. Shelley’s conduct, as alleged by the EEOC, is textbook sexual harassment/hostile work environment and retaliation. Mr. Colon was treated differently by Mr. Shelley because of his sex and, when he complained about it to law enforcement, when he “opposed” the harassment, he was discharged.
In our experience, cases don’t usually tend to be this straightforward. The transparency of the misconduct and high level of egregiousness, we suspect, are the reasons why the EEOC, which does not file many legal actions when compared to the number of complaints received, decided to bring this case. But the limited number of EEOC actions should not discourage anyone who thinks he or she has suffered or suffers under a hostile work environment, harassment, or retaliation from discussing their situation with an attorney.