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Complex Law Review Article on Same-Sex Sexual Harassment

A male employee complains to his supervisor.
The employee is gay.
He says another employee – who is straight – says things whenever the gay employee passes the straight employee’s cubicle.
The gay employee says the straight employee makes sexually suggestive remarks to him, like “Nice buns” or “Nice basket.” of “I’d let you ‘do’ me, even if I am straight.”
The straight employee shows pictures of handsome men from his sports magazine to the gay employee and says, “I bet you wouldn’t throw him out of bed for eating crackers!” or “I bet you’d like to see his baseballs!”
The gay employee finds this behavior offensive; he is in a long-term relationship and has no interest in the straight employee. He finds it offensive to have pictures of these handsome athletes shoved in his face along with suggestive comments.
The gay employee demands that something be done or he will seek legal advice.
The supervisor shows up at your door.
“Can he really sue?” he says. “Federal law doesn’t protect against anti-gay discrimination, does it? Can’t I tell him he has to live with this?”
You might “skim” this article for help; the ‘twist’ in this hypothetical is that the “straight” employee does not really have any sexual interest in the gay employee. It doesn’t fit the usual situation (e.g., a male supervisor “hitting on” his female secretary, who fears for her job if she complains to anyone).

Analysis on Same-Sex Sexual Harassment

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            Sexual harassment in the place of work involves heterosexual workers making unwanted sexual favors to other heterosexual workers of the opposite sex. In some other situations, homosexual workers may harass workers of the same gender. Furthermore, in extreme situations, a heterosexual worker may sexually harass a worker of the same sex. In the scenario provided, the situation involves a gay employee and straight employees (Same- sex harassment) (Black, 1997). The straight employee provokes the gay employees both physically and verbally. Sexual harassment of employees whether the same-sex or the opposite sex is against the statutory law. In this respect, pursuant to the establishment of Civil Rights Act in 1964, the gay employee can sue the straight employee for sexual harassment for the offensive talks that amounts to triggering sexual desires (Pierce, 2003).

            The gay employee can rely on the case law (Melnychenko vs. 84 Lumber Company) as a defense. According to this case law, the Supreme Court decision held that same-sex sexual harassment is against the constitution irrespective of the sexual category of the persons involved. The case involved a group of employees from Massachusetts Company that subjected their fellow workers into a humiliating situation by demanding sexual advances both verbally and physically. These workers demanded sexual advances to their fellow male counterparts by exposing themselves and stimulating sexual acts. The circumstances impelled these employees to quit their jobs and sue the company for sexual harassment (Black, 1997).

The Supreme Court decision termed such actions as violent and atrocious since they constituted sexual harassment that could interfere with the employee’s work performance. The actions created a daunting, unfriendly, degrading and sexually offensive workplace environment. Therefore, the sexual orientation of the employee could not justify the sexual offenses committed (Pierce, 2003).

Reference List

Black, J. (1997). “Same-Sex Harassment—Employment Discrimination—Civil Rights” Massachusetts Law Review 82 (fall)

Pierce, K. J. (2003). “Title VII and Same-Sex Sexual Harassment After Oncale Uncertainty Lingers.” Colorado Lawyer 32 (June)

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