Is same-sex harassment sexual harassment?

Does a male employee have any legal recourse if he is sexually harassed by a male coworker? Does a female employee have any legal recourse if a female supervisor makes sexually derogatory remarks and sexual advances to her?

Sex discrimination includes sexual harassment, and sexual harassment is just as unlawful. Sexual harassment includes unwelcome sexual advances and requests for sexual favors. It also includes sexually offensive or vulgar language and other verbal, visual, or physical conduct motivated by sex or gender. Such conduct is prohibited by Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code (formerly known as the Texas Commission on Human Rights Act).

Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code prohibit discrimination based on sex. While the statutes do not explicitly mention sexual harassment, sexual harassment is prohibited and included under sex discrimination. While sex discrimination focuses on discrimination in hiring, firing, promotion, and pay based on sex, sexual harassment focuses on conduct in the workplace that is detrimental or hostile to one gender.

However, sexual harassment is not just harassment by men against women. Same-sex harassment is also prohibited by Title VII. In Oncale v. Sundown Offshore Servs., Inc., the Supreme Court of the United States ruled that Title VII prohibits unwelcome conduct between members of the same gender. The Court reasoned that such harassment was, by definition, “based on sex.” Still, the conduct must be severe and pervasive, not isolated or incidental.

Take, for example, a male supervisor making unwanted sexual advances toward a male supervisor. That conduct would be prohibited by Title VII. The conduct doesn’t need to be motivated by sexual desire either: a male supervisor constantly making derogatory comments about his male subordinate using sexually insulting language would also be unlawful because the conduct shows a general hostility towards one sex. Further, same-sex sexual harassment can also be proven by evidence that a harasser treats two sexes differently.

Gender stereotyping can also lead to a claim of same-sex sexual harassment. In Price Waterhouse v. Hopkins, the Supreme Court of the United States ruled that sexual harassment based on whether an employee conformed to a particular gender stereotype was prohibited by Title VII. In that case, 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. A similar claim could be brought by a man who is teased and humiliated by his supervisors for being too feminine.