WORKPLACE LAW - Employee in Santa Cruz
Question:
My supervisor engages in conduct that I find physically intimidating and it is affecting my ability to do my job. Although he has never touched me in a sexual manner, he stands close to me and barks orders in a very loud voice. I am a small woman and he, for the most part towers over me. Although he treats all of his subordinates rudely, he does not treat the male workers in what I perceive to be a physically threatening manner. One reason might be that most of the male employees are taller than he is. I feel like I am being targeted for this bullying conduct based on my sex and small stature. I would like to complain to our human resources department, but I am not sure if this conduct would fall within the scope of our sexual harassment policy. I may just have to resign.
Answer:
We definitely recommend that you raise this issue with your human resources department. Your supervisor’s conduct may in fact constitute sexual harassment and be covered by your company’s sexual harassment policy. Even if your supervisor’s behavior is not technically sexual harassment, because it is affecting your ability to do your job, it is important that you give your employer an opportunity to investigate and rectify the situation before you resign.
The situation you describe is similar to the facts in the recent Ninth Circuit U.S. Court of Appeals case of EEOC v. National Education Association. In the National Education Association case, the Ninth Circuit held that “offensive conduct” that was not facially sex-specific could violate federal Title VII if there was sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees. The Court did not require any direct evidence that the harassing conduct was because of sex or any intent to harass because of sex.
In National Education Association, female employees alleged that a male supervisor repeatedly and severely shouted at them, screamed at them, used foul language, invaded their personal space, grabbed a female employee by the shoulders, and used threatening physical gestures such as shaking his fist at them. However, the male supervisor’s conduct was not of a sexual nature and did not include lewd comments. The Court held that there is no legal requirement that hostile acts constituting sexual harassment be overtly sexual or gender specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. The Court stated the ultimate question was whether the male supervisor’s behavior affected women more adversely than it affected men. The Court also determined that it is proper to assess evidence of differences in subjective effects upon men and women to determine if one sex was more adversely affected than the other.
In light of this case, it is important for employers to ensure there is no “bullying” or overly harsh treatment by employees including supervisors towards other employees in the workplace. Additionally, an investigation regarding allegations of sexual harassment should commence and/or continue even if there is no overtly sexual or gender specific conduct involved since “bullying” of one sex more adversely than the other sex in the workplace could constitute sexual harassment.
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