Legal Eagle Eye Newsletter for the Nursing Profession (4)14 Nov 96


   Quick Summary: Many, but not all, U.S. courts say that sexual harassment can involve a perpetrator and victim of the same sex, if the perpetrator’s conduct is based on the perpetrator’s sexual preference and the victim’s gender.

   Sexual harassment is a form of sex discrimination prohibited by Title VII of the U.S. Civil Rights Act. In this context, the word "sex" refers to a person’s gender.

   Sexual harassment can take on one or both of two general forms: "quid pro quo" sexual harassment, and a hostile work environment.

   Quid pro quo sexual harassment involves conditioning employment benefits on granting sexual favors to a superior in the workplace.

   A hostile work environment exists when a victim is subjected to a sexually abusive work environment sufficiently severe and pervasive to alter the conditions of the victim’s employment.

   A victim does not have to be the opposite gender from the harasser. The key is whether the harasser treats one sex differently than the other.   UNITED STATES DISTRICT COURT, UTAH, 1996.


   The U.S. District Court for the District of Utah acknowledged there is at present no unanimity of decision among the courts around the country on this issue, but recognized there is a trend emerging in favor of allowing sexual harassment claims in employment situations where the perpetrator and victim are the same gender.

   In a recent case, this court upheld a sexual harassment suit filed against a healthcare provider by a female employee who claimed she was sexually harassed by a female supervisor. The employee in question, a clinical social worker, terminated a brief live-in relationship with the nurse who supervised the hospital unit where both were employed. The employee testified this orientation was new to her. The nursing supervisor had been open about her lesbianism for some time.

   When the employee began dating a man, the nursing supervisor, according to the court record, expressed anger and stated she could not protect the social worker’s job if she continued seeing the man, implying a threat that she would take steps to bring about her dismissal.

   The nursing supervisor kept asking persistently for chances to see the employee socially. The employee, according to the court, was too afraid of the supervisor to ask her to stop making these overtures, and agreed to see her, but invited another co-worker along.

   The nursing supervisor’s conduct became more hostile. She began to interfere with the manner in which the social worker performed her job, scolding and screaming at her in front of higher management in administrative meetings, insisting that she stop seeing patients and families in her office with the door shut, and telling other employees behind her back that the social worker suffered from a borderline personality disorder.

   The social worker complained to management, to no avail, that she was being subjected to sexual harassment, and then resigned and filed a lawsuit.

   The hospital made a formal motion in court to have the lawsuit dismissed. Assuming for the sake of argument the factual allegations of the suit were true, the hospital argued, the case still should be dismissed because same-sex sexual harassment cases are not recognized by the law as valid. The court conceded not all courts in the U.S. agree, but decided to follow what it saw as the emerging trend of authority, and upheld the legal premise of the suit.

   According to the court, its ruling recognizes that a homosexual supervisor is capable of illegal sexual harassment toward a same-gender subordinate.

   Although male vs. male sexual harassment was not an issue in this case, the court noted in passing that other courts have ruled that illegal same-gender sexual harassment can occur between one male and another.

   Whether the subordinate is homosexual or heterosexual is not important, the court pointed out. It is the supervisor’s motivation and conduct that are relevant, whether the supervisor has engaged in "quid pro quo" sexual harassment, by expecting sexual favors in exchange for employment benefits, or has created a hostile work environment, by harassing or intimidating a same-gender subordinate.

   The court refused to put its seal of approval on discrimination or harassment toward an employee because of the employee’s sexual orientation. The court cautioned, however, against concluding from this that Title VII bans employment discrimination or sexual harassment because of the victim’s sexual orientation. The U.S. EEOC in its workplace guidelines has explicitly declined to rule out employment discrimination or sexual harassment based on the victim’s sexual orientation or preference, as at present there is no legal authority on the Federal level for that.

   Some state and local laws, however, do outlaw employment discrimination and sexual harassment based on the victim’s sexual orientation or preference. Johnson vs. Community Nursing Services, 932 F. Supp. 269 (D. Utah, 1996).