NARROWING THE LEGAL DEFINITION OF "HOMOSEXUAL": ESTABLISHING SEXUAL DESIRE AS A MOTIVE FOR SAME-SEX SEXUAL HARASSMENT
ROBERT K. ROBINSON
KAREN EPERMANIS
DWIGHT D. FRINK
DOI: 10.2190/3EF2-A51K-47T9-WLX4
Abstract
As actionable claims under Title VII of the Civil Rights Act of 1964, the number of same-sex sexual harassment complaints is increasing each year. As a consequence, employers and HR professionals are confronted with establishing whether same-sex behaviors in the workplace rise to the level of being actionable sexual harassment or are merely horseplay. To establish sexual harassment, the complaining party must be able to demonstrate that he or she was treated differently because of his or her sex. Of the three recognized evidentiary routes for establishing same-sex sexual harassment, proving that the harasser was motivated by homosexual sexual desire is the least problematic. This article investigates the evolving court guidance as to what constitutes credible evidence that the harasser was homosexual, and therefore motivated by a sexual desire. To place this topic into proper context, a discussion of same-sex sexual harassment is also provided.
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