Same Sex Harassment

May 01, 1998-It's not unusual for different courts to disagree on the scope or purpose of a particular law that Congress has enacted. When it comes to sexual harassment in the workplace by a harasser that is of the same sex as the employee affected, state and federal courts across the county have issued a hodgepodge of decisions. Some courts have held that same-sex sexual harassment claims are not recognized under such non-discrimination statutes as Title VII. Some have concluded that same-sex claims should only proceed where the affected employee can prove that the harasser is homosexual and therefore motivated by a personal sexual interest. Other courts have suggested that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation or motivation.

In a unanimous opinion that impacts workplaces across the country, the U.S. Supreme Court resolved any doubt on the issue: Nothing in Title VII necessarily bars a claim of discrimination "because of . . . sex" merely because the complaining employee and the alleged harasser are both of the same sex. Oncale v. Sundowner Offshore Services, Inc. 523 U.S.75; 118 S.Ct. 998; 140 L. Ed. 2d 201; 66 U.S.L.W. 4172; 76 decided March 4, 1998.

In an opinion that is just over four pages long, the Supreme Court summarized the rather egregious facts in the Oncale case and "in the interest of both brevity and dignity" described them only generally. Joseph Oncale worked as a roustabout on an eight man crew on a Chevron USA oil platform in the Gulf of Mexico. Three of the other crew members, including two supervisors, forcibly subjected Oncale on numerous occasions to sex-related humiliating actions in the presence of the rest of the crew. The two supervisors physically assaulted him in a sexual manner and one of the supervisors threatened Oncale with rape.

Oncale complained to his supervisor. The company's safety compliance clerk told Oncale that he, too, had been picked on by two supervisors who had called the compliance clerk a name suggesting that he was homosexual. Oncale ultimately quit as a result of the harassment and verbal abuse. He testified in his deposition that he thought if he didn't leave his job he would be raped or forced to have sex.

Oncale's subsequent lawsuit in Louisiana federal court was summarily dismissed based on the existing law in the 5th Circuit that a male has no cause of action under Title VII for harassment by male coworkers. When Oncale appealed, the 5th Circuit concluded that its prior decision was binding precedent and affirmed the trial court's dismissal of his case. Oncale took his case to the U.S. Supreme Court which heard oral argument on December 3, 1997 and issued a decision only three months later.

The high court noted the now routine recognition of the fact that Title VII's prohibition of discrimination because of sex protects men as well as women. It also looked to the law of racial discrimination in which it is clear that it's possible for an employer to discriminate against members of its own race. Similarly, the court had already recognized that a male employee can claim that an employer discriminated against him because of his sex when it selected a female employee for promotion. In short, men and women are equally protected by the sex discrimination provisions of the federal statute. Now the U.S. Supreme Court has clarified that discrimination can be found when facts demonstrate that sex-specific and derogatory conduct reveal that the harasser is motivated by hostility to the presence of women or men-or that members of both sexes are not treated equally in the workplace.

Courts sorting out same sex cases will be expected, under the Supreme Court's standard, to examine all the facts and circumstances: as in the opposite sex scenario, conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment does not violate Title VII. It is for this reason that horseplay and innocent flirtations do not usually rise to the level of harassment. Even the Supreme Court recognized that the severity of harassment has to be judged from the perspective of a reasonable person considering all the circumstances. The Supreme Court's example: A professional football player's environment is not severely abusive if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would be perceived as abusive by the coach's secretary (male or female) back at the office.

The court expects judges and juries to use common sense in distinguishing between simple teasing or rough housing and conduct which a reasonable person would find severely hostile or abusive. Employers should be aware, however, that they will not have the luxury of using such common sense in deciding whether to investigate every allegation of same sex harassment. The employer's obligation remains the same in this scenario, to promptly investigate all suggestions of harassment of which the employer is aware, and to take actions reasonably calculated to put an end to it.