Sex Harassment Claims Fall- Except From Men

By Catherine Ho
Daily Journal Staff Writer

Sexual harassment claims against employers plummeted during the past decade, except among one major demographic- men.

Since sexual harassment historically has been seen as a claim brought by a female employee against a male co-worker or a boss, the increase in complaints filed by men marks a significant shift of gender dynamics in the workplace; as well as in the courtroom.

Sexual harassment claims in general dropped to 11,717 in 2010 from 15,222 in 1999, while the proportion of claims filed by men reached an all-time high of 16 percent this year, according to data collected by the U.S. Equal Employment Opportunity Commission.

The trend is likely fueled by the tight job market, growing acceptance of non-traditional gender roles and a greater aware- ness of workplace rights, lawyers said. Whatever the.reason, the record number of sexual harassment suits filed by men is starting to prompt businesses to rejigger how they view sexual harassment training.

Matthew Effland, a partner at Ogletree, Deakins, Nash, Smoak & Stewart P.C.who represents employers, said some companies' training changed.

"I've adjusted my training to clients to provide examples of what traditionally would be considered reverse harassment or discrimination," he said. "It's more on the functional side of things when you're training people rather than on the policy side."

Glen Kraemer, a partner at Curiale Hirschfeld Kraemer LLP who represents employers in sexual harassment and discrimination claims, said his firm has seen a rise in men suing men over the past three years.

Sexually tinged "shop talk" - a common complaint in male-to-male harassment claims - may have been less of an issue during a flourishing economy when it was easier to find another job, but it's becoming fuel for lawsuits amid layoffs and firings, Kraemer said.

"What in good times would be amusing or benign are, in the wake of layoffs, terminations and other forms of discipline, being used to create more opportunities for law- suits when you wouldn't have seen them before; he said.

The uptick began around the time the U.S. Supreme Court ruled in Oncale v. Sundowner that sexual harassment claims can be filed against someone of the same sex, a game-changing ruling the high court issued in 1998.

Last    September, the 9th    U.S. Circuit Court of Appeals ruled in a case out of Las Vegas where a male airline employee accused a female colleague of unwanted sexual advances that negatively affected his work performance. The court confirmed the standard established in Oncale - that men and women are entitled to equal protection from a sexually abusive work environment.

"The EEOC does not distinguish Icases on the ground that, for ex- ample, a man is less likely to be offended than a woman by being' subjected to unwanted sexual overtures," said EEOC spokeswoman I Christine Nazer.

Although the EEOC does not break down how many complaints are filed by men against men, or men against women, notable cases involving 'both situations have reached jury trials in recent years.

Though the legal protections are the same for men and women, juries may not see it that way.

"Most people just don't buy into the claim that a man is emotionally devastated by having sex with a woman," said Keith Fink of Keith A. Fink and Associates, who represents both plaintlffs and defendants in sexual harassment claims, "It runs contrary to everyone's human experience."

Fink, who last month resolved a case brought by a fired employee against Pacific Hospital of Long Beach, said many men claim' sexual harassment after they get fired simply because it's easier to collect insurance money than from a wage-and-hour claim. Insurance carriers typically don't cover wage claims, or only cover up to a limited amount. However, Employment Practices Liability Insurance, which companies buy to cover expenses associated with employee rights violations such as discrimination or wrongful termination, may cover up to a million dollars, Fink said.

"If you're a plaintiffs' attorney and you're looking to get your client paid, if you have strictly a wage- and-hour claim, there's no insurance money," Fink said, "However, if you have a harassment claim or wrongful termination claim, you're going to trigger the EPLI coverage, The reality is it's pure business."

Pamela Teren, who specializes in representing employees in sexual harassment, said the last several harassment lawsuits she's handled were brought by male plaintiffs, including a pending case brought by a former bartender accusing his male bosses at a Hollywood restaurant of making harassing comments about his sexual orientation.

Earlier this month, Teren finalized a settlement against Sony Corp. of America brought by a male film editor who said he was harassed by a male coworker.

Last year, when Teren argued on behalf of a male nurse suing Ranchos Los Amigos National Rehabilitation Center and Los Angeles County - including claims that one female employee flashed her breasts and made sexual advances - she made it a point to ask the jury to consider the merits of the claim if the roles were reversed.

"When you think of it in those terms, the male equivalent, you know it's totally unacceptable and outrageous," Teren, of Teren Law Group, said. "I argued it that way in the closing, It's not a traditional thing but if you have even one doubt whether it's OK, reverse the situation, How would you react if you heard it the other way around?"

The jury awarded her client, Laid Lefkir, $1 million in past and future economic and non-economic damages.