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Men require equal protection, too

iStock image used with permission.

Whether it’s Jimmy Fallon’s male stage manager suing him because he was replaced by a woman or Michael Douglas’s character fighting for his professional life in the film “Disclosure,” more men are complaining about being victims of sexual discrimination and harassment.

Whether in the movies or real life, the myth that only women are victimized in the workplace is being dispelled as men grow more comfortable complaining about mistreatment.

The percentage of sexual harassment charges filed with the U.S. Equal Employment Opportunity Commission by men doubled from 8 percent to 16 percent between 1990 and 2009, according to Christine Saah Nazer, an EEOC public affairs specialist/news media strategist, who also noted that women still represent 84 percent of all sexual harassment claims.

“While women continue to file the overwhelming majority of sexual harassment charges, the proportion of sexual harassment charges filed by men has steadily increased over the past two decades,” she said, noting that many of the male cases involve harassment by other men.

“Some of the sexual harassment charges filed by men presumably allege harassment by female supervisors or co-workers,” she said. “Similarly, some of the sexual harassment charges filed by women presumably allege harassment by other women.”

Nazer said the number of discrimination claims is up overall: Gender-related claims represent 30 percent of the total in 2009. The majority of claims filed last year involving racial and retaliation charges were even, at 36 percent each.

Nazer said the EEOC surmises that claims may be up because the U.S. workforce overall is more diverse, and more employees are aware of their rights. She also said an increase in filings is typical during an economic downturn, as some laid off employees feel they may have been discriminated against when they were laid off or otherwise left out of work.

Todd R. Shinaman, an attorney in Nixon Peabody’s Labor and Employment Group, said he hasn’t noticed a dramatic increase in the number of men filing claims, but agrees the rate has gone up. He attributed part of that to the increasing number of women managers, which naturally increases the potential for more claims being filed by men who work for women.

Cases filed

He said another type of male gender discrimination is men claiming they’re being treated differently. He cited a recent U.S. Court of Appeals for the Ninth Circuit case, Hawn v. Executive Jet Management, in which three male pilots were terminated after a female flight attendant alleged they sexually harassed her and created a hostile work environment through sexualized banter, crude jokes and the sharing of crude and/or pornographic e-mails and websites.

The pilots said the flight attendant was an active participant or initiator of much of the conduct, and that their termination was illegal because the flight attendant and other female flight attendants engaged in similar conduct but were not terminated.

The district court in Arizona, with which the appellate panel agreed, concluded the plaintiffs failed to establish a prima facie case because they did not show that the female employees received more favorable treatment, nor were similarly situated to the plaintiffs, because they did not report to the same supervisor as the plaintiffs. Even if they did, the court reasoned, their conduct did not give rise to a complaint. The pilots’ did.

“You do see those claims where males are saying ‘We’re being subjected to a different standard when it comes to sexual harassment,” Shinaman said, noting he had a case, now settled, in which a male manager accused of sexually harassing a female employee claimed the woman’s side of the story was unfairly taken as the truth over his.

Changes afoot

In “Disclosure,” which Shinaman also mentioned, Michael Douglas plays a white-collar worker about to lose everything in the wake of unwanted sexual advances by his female boss.

“Of course, that was a Hollywood version of the story,” Shinaman said. But in Fallon’s case, the reality is that his former stage manager is claiming the comedian prefers taking directions from women.

The nature of the workplace clearly is evolving.

“Men understand that they have the right to come to work without being discriminated against, as well,” said James C. Holahan, senior counsel at Bond, Schoeneck & King PLLC’s office in Rochester.

“Sex discrimination claims were unheard of 20 years ago,” he said. “I just Googled ‘male sex discrimination’ and came up with several articles. I think it’s interesting because the law has always prohibited sexual discrimination, male or female. I think, for whatever reason, men have not resorted to dealing with these issues through the courts or the federal and state agencies that enforce these discrimination laws.”

Holahan, whose practice is concentrated in labor relations and employment law, said another change is that men are moving into non-traditional positions that historically were held by women, such as nursing.

“The changing dynamic of the workplace and the uncertainty that they cause may also produce claims of this nature,” Holahan said.

Paul F. Shanahan, a local attorney and professor of business law at the University of Rochester, said that, traditionally, it was a social stigma when men discussed issues such as male gender discrimination.

“Employers now have to rethink the definition of sexual harassment because men can be victims of it,” he said. “Employers have to change to prevent a hostile work environment from existing.”

Employers obviously want to avoid litigation because it does not serve the their needs from a cost standpoint, nor does it serve to promote employee retention, Shanahan said.

“It’s just not good business to have a hostile work environment,” he said. “I think that all an employer can do is have a policy that’s both family friendly and not gender hostile.”

He said employees also must understand that something that is humorous outside of the workplace may not be perceived in the same way on the job.

“One of the things, obviously the cornerstone of any effective [human resources] program is going to be training and policy formation,” Holahan said. “Employers should make sure when they’re giving examples of sexual discrimination they note men can discriminate against men or women can discriminate against men, and they’re equally as wrong as men discriminating against women.”

He said company policies could be broadened to better ensure such prohibitions are understood.

Sexual harassment charges FY 2003-2009

Source: U.S. Equal Employment Opportunity Commission

TOTAL discrimination charges

FY 2003

81,293

FY 2004

79,432

FY 2005

75,428

FY 2006

75,768

FY 2007

82,792

FY 2008

95,402

FY 2009

93,277

Charges involving sexual harassment

FY 2003

24,362

FY 2004

24,249

FY 2005

23,094

FY 2006

23,247

FY 2007

24,826

FY 2008

28,372

FY 2009

28,028

Total Title VII sexual harassment charge receipts

FY 2003

13,566

FY 2004

13,136

FY 2005

12,679

FY 2006

12,025

FY 2007

12,510

FY 2008

13,867

FY 2009

12,696

% of Title VII charges filed by males

FY 2003

14.7%

FY 2004

15.1%

FY 2005

14.3%

FY 2006

15.4%

FY 2007

16.0%

FY 2008

15.9%

FY 2009

16.0%