A new catch phrase burst onto the national scene last weekend when a video emerged of Republican presidential candidate Donald Trump engaging in what he termed “locker room talk” back in 2005.
If you missed the innumerable replays over the course of the weekend, please note that a video surfaced where Mr. Trump was heard discussing some of his personal practices when meeting women. He referenced one encounter with a married woman with whom he tried (and apparently failed) to initiate an intimate relationship. He then spoke of his tendency to kiss women when he meets them and that as a celebrity, he feels he has great latitude to become more physical with women, even to the point of “grabbing them” in a sexually overt manner.
At the Work Place
The political ramifications of this video will (unfortunately) be debated and rehashed for many days and weeks to come and we will leave it to the media and the politicos to do just that. When it comes to the workplace, however, it is imperative that employers understand the importance of avoiding or suppressing this sort of locker room talk, even in the locker room itself.
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment, deeming it to be a form of illegal sex discrimination. The well-known definition of sexual harassment “is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” where:
– enduring the offensive conduct becomes a condition of continued employment, or
– the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Importantly, the person claiming to be harassed need not be the actual target of the behavior but can be anyone negatively affected by it. Therefore, if men in the break room are talking as Mr. Trump did in the video, their behavior can have a harassing impact on a female co-worker who simply overhears the conversation at the next table or across the room. While the men may claim that they had no intent to offend the co-worker and that it was just harmless banter, the impact on the female’s work environment is very real and the behavior can potentially be viewed as part of a pattern of severe or pervasive sexual conduct.
But what if the conversation truly takes place in a locker room or some other setting where only members of one gender are present and they are talking crudely about the opposite sex? In other words, can a man claim to be victimized by sexual harassment when encountering other men talking crudely about having sex with women?
Just Between Us Guys
In the strictest terms, sexual harassment knows no gender. The harasser can be male or female, as can the victim. However, in the case of “same sex harassment” where a man might claim to be sexually harassed by other men (or a woman claims the same about other women), the law requires that the sexually oriented behavior be perpetrated against the victim “because of sex.” Mere “horseplay” will not rise to the level of illegal behavior.
Therefore, a gay male would have to prove that the sexually oriented discussion was directed at him because he was a man. It is conceivable that this could happen if, for example, a group of men thought it might be funny or clever to talk crudely about sex with women as a way of making (at least in their minds) their gay co-worker uncomfortable. The victim would then proceed to prove that he was subjected to this behavior because he is a man and that women would not have been similarly victimized.
In most cases, however, such intent would be difficult to ascertain and even harder to prove. If men are behaving this way with other men, it seems more likely than not that they are doing so simply because they enjoy it. As a result, it is tempting to dismiss this as a harmless and victimless undertaking since nobody’s work environment is affected. Resist that temptation because any such incident can still be a significant piece of evidence in a subsequent sexual harassment claim.
As we explored in an earlier piece entitled “Roger Ailes and the Fiction of He Said/She Said“, sexual harassment rarely occurs in front of an audience. To evaluate a sexual harassment claim, an employer (or a judge or jury if the matter gets that far) will look to see whether the accused has engaged in similar behavior in the past.
Thus, an accused male employee’s penchant for talking about sex will almost certainly be taken into account in determining the credibility of the claimant’s allegations of sexually oriented attention, and the accused’s denials. Moreover, if the employer knew of the accused’s behavior but dismissed it as mere” locker room talk”, they stand a much better chance of being held liable in the newer matter because they will be viewed as being in a position where they knew or should have known about the behavior and failed to stop it.
Whatever one might think about Donald Trump’s behavior on the video, we must always remember that behavior in the work place is evaluated differently than in other settings. If you do not care for the sexually oriented dialogue in a movie, you can get up and leave. If someone is talking dirty at a party, you can excuse yourself and find another conversation partner. It is different at work since employees often are not free to leave their work station, so the rules about sexually oriented behavior are different as well.
Locker room talk may be acceptable or even enjoyed on one’s own time. At work, it can be an invitation to trouble and liability, and employers are well advised to slam the door on it.