HR’s Wakeup Call: The Urgent Need To Tackle LGBTQ+ Sexual Harassment
Back in the day, the most popular late night talk show was The Arsenio Hall show (Woof-woof! #IYKTYK).
One of his running gags was his observational comedy where he would point out odd things and say, “That’s one of those things that make you go, hmm…”
Things like, why do you park in a driveway and drive on a parkway? Hmm… Recently, I had a moment that made me go, hmmm…
I have this friend who is gay, and his name (for the purposes of this article) is “Bob.” Bob is very opinionated and is triggered easily if you step on one of his personal landmines, such as disparaging the wrong housewife on his favorite reality TV series.
When Bob is on a tear, I find it best to nod in agreement while thinking of something else, otherwise his rants will never end. But the other day, Bob was triggered by something and this is what I heard as he rambled on about TV characters.
- Max Sweeney (from The L Word) is often harassed by Tina Kennard who tries to touch her without consent.
- Megan Bloomfield (But I’m a Cheerleader) is hit on by her conversion therapy counselor who says all manner of sexually suggestive things.
- Adam Groff (Sex Education) is targeted by his male classmates all the time and it's all repressed sexual tension.
- Rue Bennett (Euphoria) is bothered constantly by Fez, but that’s different, but not really.
After nodding a while, I asked what he was trying to say and with exasperation he pointed out how people in his community are sexually harassed at work by people outside of his community and nobody talks about it.
That’s when I had that Arsenio Hall moment. So, I looked up some stats related to sexual harassment in the workplace.
- In FY 2022, the EEOC received 6,201 sexual harassment charges compared to 5,581 in FY 2021 – an increase of roughly 10%. [source]
- 38% of all women and 14% of men have reported experiencing sexual harassment at work. [source]
- 1-in-7 women and 1-in-17 men have sought a new job assignment, changed jobs or quit because of sexual harassment and assault. [source]
- 56% of employees have witnessed or experienced sexual harassment in the workplace. [source]
Okay, those are some high numbers affecting both sexes in the workplace. On top of this, a 2019 survey from the LGBT Foundation found that 68% respondents reported being sexually harassed, but two-thirds didn’t report it. How many cases go unreported each year, no one really knows, but I think it’s safe to say that it’s a substantial amount.
The reasons LGBTQ+ people didn’t report the incidents ranged from a fear of being outed at work to a fear that reporting it could cause further harassment or fears that it may change the way other people in the workplace view and treat them, to name a few.
All of this led me to wonder, what percentage of the workforce identifies as being in the LGBTQ+ community?
According to the Williams Institute, 4.5% of the U.S. population identifies as lesbian, gay, bisexual, or transgender, which is an estimated 11 million people. Among them, 88% are employed.
A study from McKinsey found that openly LGBTQ+ women make up 2.3% of entry-level roles and 1.6% of managers, while LGBTQ+ men account for 3.1% and 2.8% of these categories, respectively. Both of these studies tell me that there is no exact percentage on how big the LGBTQ+ population is, however, it is clear that LGBTQ+ individuals are a significant part of the workforce.
With that being said, I wonder how prevalent sexual harassment of LGBTQ+ individuals is in the workplace. Bob is convinced that it’s a rampant scourge within corporate America. I am skeptical, so I decided to let data be my guide.
How Prevalent Is LGBTQ+ Sexual Harassment In The Workplace?
A 2018 study by the Williams Institute at UCLA School of Law entitled – “LGBT People's Experiences of Workplace Discrimination and Harassment” found that 40% of LGBTQ+ employees have experienced sexual harassment at work.
The Equal Employment Opportunity Commission (EEOC) does not track the number of sexual harassment cases specific to the LGBTQ+ community that are filed each year. Bob calls this a travesty. However, the EEOC does track the number of sexual harassment cases that are filed in general, and this number has increased once again after declining during the peak years of the pandemic.
The McKinsey and Williams Institute studies found that LGBTQ+ employees are sexually harassed more than twice as much as heterosexual employees.
The report also indicated that nearly one-third (31.1%) of LGBTQ+ respondents reported that they experienced discrimination or harassment within the past five years.
So, Bob was right, which is something he loves to hear. Yay Bob!
Interestingly, it was also noted in the report that when you add race as a factor, people of color are discriminated against and harassed more than whites. However, when it comes to sexual harassment, they are targeted equally.
Why Is This Trending In The Workplace?
I don’t have specific data for why LGBTQ+ sexual harassment is increasing in the workplace, but we can make an educated guess. Here are some factors I think are at play.
- #MeToo movement. The #MeToo movement has given a voice to victims of sexual harassment and assault. The movement has also encouraged more people to come forward and report their experiences.
- Changes in the workplace. The workplace now has more women and people of color in leadership positions. This change in demographics may be leading to more sexual harassment reports, as these groups are more likely to be targeted by harassers.
- Social media. Social media has made it easier for people to share their stories of sexual harassment. This has helped to raise awareness of the problem and encourage more people to come forward.
- Changes in the law. Some countries and states have passed new laws that expand the definition of sexual harassment and make it easier for victims to file complaints. This may also be contributing to the increase in sexual harassment cases.
The more I look at it, the more I think the legal progressions have been the biggest factor. The U.S. Equal Employment Opportunity Commission (EEOC) states that LGBTQ sexual harassment is illegal under federal law, the lynchpin for that being Title VII.
As I understand it, the law does not prohibit teasing, offhand comments or isolated incidents that are not very serious, but it does consider harassment illegal when it becomes a pervasive or a severe problem in the workplace.
Who can say when a line has been crossed? When does microaggression become a tangible threat? In a court of law, that is settled by a judge. Do you really want it to reach that level of scrutiny? Probably not. Better to err on the side of caution as much as possible.
From what I can tell, sexual harassment of LGBTQ+ individuals looks the same as the traditional sexual harassment tropes portrayed in the media and lawsuits. Things like sexually offensive or vulgar language and other verbal, visual or physical conduct motivated by sex or gender.
But there may be more to it than that. One doesn’t have to use a tremendous amount of imagination to create a scenario in which heterosexual women act differently around gay, trans or bi-sexual men than they do heterosexual men. The same goes for heterosexual men and their behavior around lesbian, trans or bi-sexual women.
In these scenarios exists the potential for a variety of toxic behaviors that can fall under sexual harassment, such as unwelcome touching and sexual advances that stem from the ill conceived notion that an individual from the LGBTQ+ community that someone has bonded with “just hasn’t met the right member of the opposite sex.”
Add it all up and what you see is a volatile mix of possibilities for LGTBQ+ people to be harassed or discriminated against in the workplace.
Two Landmark Cases
Two landmark cases made it clear that same-sex sexual harassment is illegal and that employers are required to take steps to prevent it: Oncale vs Sundowner Offshore Services (1998) and Bostock vs Clayton County (2020).
Oncale vs Sundowner Offshore Services (1998)
In the case of Oncale v. Sundowner Offshore Services, the Supreme Court unanimously ruled that Title VII of the Civil Rights Act of 1964 prohibits sexual harassment between members of the same sex.
The case involved Joseph Oncale, a male oil rig worker who was subjected to repeated sexual harassment by his male coworkers. Oncale was groped, raped and forced to watch pornography. He eventually filed a lawsuit against Sundowner alleging sexual harassment under Title VII.
The lower courts dismissed Oncale's case, finding that Title VII did not protect employees from same-sex sexual harassment. However, the Supreme Court reversed this decision, holding that Title VII's prohibition on sex discrimination encompasses same-sex sexual harassment.
The Court reasoned that same-sex sexual harassment can be just as harmful to employees as opposite-sex sexual harassment. In both cases, the harassment is based on the employee's sex and can create a hostile work environment.
The Oncale decision was a major victory for LGBTQ+ rights. It established that Title VII protects all employees from sexual harassment, regardless of their sexual orientation.
Bostock vs Clayton County (2020)
In the case of Bostock v. Clayton County (2020), the Supreme Court ruled that Title VII also prohibits discrimination against employees on the basis of sexual orientation and gender identity.
The plaintiff, Gerald Bostock, was fired from his county job after he expressed interest in a gay softball league at work. The Bostock decision was a landmark ruling for LGBTQ+ rights, and it has had a significant impact on the law of LGBTQ+ sexual harassment.
In the years since Bostock, courts have applied the decision to hold that employers are liable for LGTBQ+ sexual harassment that creates a hostile work environment or leads to adverse employment actions against the employee.
Definition(s) of Sexual Harassment
When I read up on this, I noticed that LGBTQ+ sexual harassment is sometimes defined differently in the law than what I think it is.
For example, courts have held that harassment based on gender stereotypes of how a man or woman should act is illegal under Title VII. In other words, it’s illegal to harass a woman for being too masculine or to harass a man for being too effeminate.
In one case, a male waiter was harassed by his male coworkers for carrying his tray "like a girl" and for not wanting to have sex with a female coworker. He was referred to as "she" and "her" and a host of derogatory names that I will decline to mention here.
The Federal Court of Appeals that decided the case found that this was sexual harassment. He was being mistreated because he did not conform to his coworkers' gender-based stereotypes of masculinity. (Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001).)
Another case similar to this is Price Waterhouse v. Hopkins. In that instance, the Supreme Court ruled that sexual harassment occurred because a woman was harassed for being too masculine and was urged to act more “like a woman.” The Court found that this conduct was discrimination based on sex.
Preventing LGTBQ+ Sexual Harassment In The Workplace
Preventing sexual harassment of any kind in the workplace is the right thing to do, full stop. All employees deserve to work in a safe and respectful environment.
That being said, there are business advantages to preventing this type of sexual harassment beyond the reduced legal risk and billions of dollars in lost productivity each year.
- Improved employee morale and productivity. Sexual harassment can create a hostile work environment for all employees, regardless of their sexual orientation. This can lead to decreased morale, productivity and job satisfaction.
- Psychological safety. Beyond physical safety, LGBTQ+ individuals face barriers to psychological safety in the workplace due to past experiences and the discrimination they face in other areas of life. Creating an environment free of harassment and discrimination for these individuals is paramount if you’re trying to create a culture of belonging, where employees feel they can be themselves in the workplace.
- Reduced employee turnover. Employees who are sexually harassed are more likely to leave their jobs. Given the recruitment and retention headaches many businesses are experiencing, it’s another bottom line reason to ensure you're cultivating an environment of safety and belonging.
- Enhanced reputation. Businesses that are known for their commitment to diversity and inclusion are more likely to attract and retain top talent. They are also more likely to be seen as a desirable partner by customers and suppliers. By preventing LGBTQ+ sexual harassment, businesses can enhance their reputation and attract new customers and partners.
An Ounce Of Prevention Is Worth A Pound Of Cure
This is an important topic that is easy to ignore if you feel your office is above reproach, yet I hope you decide to remain open-minded and give my next few suggestions true consideration.
Sexual harassment of any sort is reprehensible in the office but LGBTQ+ harassment has the potential to be even more divisive or create violent reactions due to the presence of homophobia, transphobia and ideologies that involve politics around those identities.
Do these things now, to prevent a world of hurt later.
1. Provide anti-discrimination training to all employees. But especially supervisors and managers. The training should cover a variety of topics, including how sexual orientation and gender identity are covered under the law, how to treat and accommodate transgender employees, best practices for communication with and regarding LGBTQ+ employees and the company's responsibilities when third parties make discriminatory requests.
2. Have a plan in place to investigate claims of sexual harassment and sexual orientation discrimination. Just as important, be prepared to follow through with disciplinary action. Inform employees about the process and what they can expect to encourage them to come forward.
3. Hold sessions during onboarding and at least once a year to define harassment. Also include discrimination and retaliation. Explain the company's policies and procedures for reporting and addressing these issues.
4. Foster a culture of respect and support in the workplace. This can be achieved by promoting respectful communication and appropriate relationships, being responsive to reports of sexual harassment and evaluating programs to improve the overall program culture.
Preventing LGBTQ+ sexual discrimination in the workplace is not only a matter of ethical responsibility but also a smart business decision. Embracing diversity and fostering an inclusive work environment creates a stronger, more innovative and productive workforce.
In the age of social media and cancel culture, it's best to weed out issues that can damage your employer brand instead of apologizing for them later. Not only is that message good for the bottom line, it's also Bob approved.
Get to know the author of this post a bit more by reading our recent interview. Meet the Subject Matter Expert: Jim Stroud.