Do sex harassment laws protect an employee from taunting by co-workers who think he is a virgin? Yes, said a New Jersey Superior Court. "He was a male who did not behave as they perceived a male should behave..." That, said the court, is gender stereotyping that would not have occurred but for the employee's gender. A jury should hear the evidence and make the final decision.
The court presented the following graphic and undisputed account of the plaintiff's harrowing experiences: "They confronted him with the slang terms 'whacko', 'jerk-off', and '3-3,3-5', thus insinuating that the plaintiff masturbates in lieu of having sex with women. The coworkers also placed pictures with captions on plaintiff's desk and in his locker, which made reference to plaintiff's lack of sexual relations with women. These pictures included a picture of a kitten with a caption that stated "the only pussy Bill has ever gotten", a picture of a puppy with a caption which stated "I'm Billy's girl", and an altered photo which depicts plaintiff holding a Penthouse magazine, presumably looking at a naked women, and stating "Wow! Is this what it looks like? How gross. I'll never touch anything like that. UgHHH!"
The employee complained to his supervisors and the Personnel Department. Yet, the harassment not only continued, but increased throughout additional departments within the hospital. Finally, the employee filed suit against the hospital, alleging a hostile environment in violation of the New Jersey Law Against Discrimination thereinafter LAD]. The hospital moved for summary judgment and, for the first time, a New Jersey state court was facing the question of whether male-on-male gender stereotyping is actionable.
Holding: The hospital's motion to dismiss was denied. It may be difficult, acknowledged the court, to convince a jury that sexually explicit words or conduct between men would demonstrate an anti-male atmosphere. "Difficult, but not impossible, which dooms for the time being this motion to dismiss," added the court. The LAD specifically prohibited discrimination based on one's perception of another's sexual orientation. "There is no rhyme or reason for allowing sexual harassment claims by men against women, women against men, and harassment because of one's sexual orientation, and yet permit and condone severe sexual harassment of a person because he is perceived or presumed to be less than someone's definition of masculine."
The court relied upon precedents set by federal Title Vii cases, the Supreme Court's reasoning in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes), the broad language of the LAD, and its own common-sense approach that "no one should be subject to sexual harassment that creates a hostile workplace."
Francis Riley, attorney for the plaintiff, told The Echo that his client's case survived a second attempt for summary judgment and proceeded to trial. A settlement was agreed upon during the second day of testimony. Attorney Riley said that the second summary judgment hearing yielded what would be new legal precedent in New Jersey, had the judge written his statements into the opinion instead of reading them into the record. Judge Menza agreed with the plaintiff that he automatically met the first burden of proof in a sexual harassment claim (i.e., the conduct would not have occurred but for the employee's gender) because the acts of harassment were facially sexual and uncontested by the employer. This may imply that any plaintiff need only prove the worksite acts, if uncontested by the employer, are of a sexual nature in order to meet the first burden of proof. The defense would be precluded from raising evidence regarding the harasser's intent. (The plaintiff would still have to prove the conduct was pervasive or severe enough to make a reasonable woman or man believe that the conditions of employment are altered and the working environment is hostile or abusive.)
| Rayna Rogers, D.O. Associate Professor of Child Psychiatry Univeristy of California |
Dr. Rogers Comments: Gender role behavior of males and females, along with the long-standing traditions and institutions which serve to teach and maintain these behaviors is most properly a subject for anthropologists and sociologist to explore. When such traditions and institutions impose their weight upon a given individual, and cause him or her to suffer, however, the issue becomes fair game for psychiatrists.
In Zalewski, the question of sex role stereotyping enable the plaintiff to demonstrate that "locker room" type harassment of men who fail to live up to the "machismo" image of the traditional male in our culture is grounds for action in the courts. Fair enough. Why is it so problematic for adult males to be virgins? What was it about Mr. Zalewski's sexual naivet頴 that was so abhorrent to his male co-workers that they found it necessary to scapegoat him by emphasizing his lack of sexual conquest with females? What, if anything, does this mean about Mr. Zalewski? What does it mean about our culture? Not having been socialized as a male, I certainly invite any opposing opinion, if it will enlighten us on the issue of male peer pressure to demonstrate sexual experience with females. A man within any group who does not indicate his "manliness" by discussing his interest in, or experience with females in a sexual capacity, raises the anxiety of the group. Teasing the inexperienced male, then, is a way to teach him: "This is how to be one of us. You must demonstrate your sexual familiarity with females. That way we can be sure you will not become sexually familiar with one of us."
Harassment by heterosexual males of other heterosexual males on the basis of lack of proof of sexual activity with females is tantamount to harassment by straight men against gay men. In both cases, the harassment stems from the discomfort of the heterosexual males with the possibility of coming into contact with homosexual males. The same homophobic rage that drives gay bashing in the less sophisticated and more violent impulse-governed groups also fuels the type of harassment described in the Zalewski case.
All this is not to say that Mr. Zalewski is gay. Indeed, no one has suggested this at any point. There may be many reasons for an adult man to be sexually naive. Nevertheless, it seems that males in a group need to create rituals with which to bond to one another. The commonest ritual is probably the discussion of sexual activity with females. If one man in the group does not participate in the ritual, the ritual must be revised to put pressure on that man to show his "maleness." If peer pressure cannot bring the straggler up to speed, so to speak, then the group must bond by expelling and scapegoating the straggler. Is it simply too "dangerous" to have a male of undeclared sexuality moving within the fold of an intimate male group?
