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In a case watched closely by
both labor lawyers and employers, the Supreme Court ruled March 4 that same-sex harassment
claims can be brought under Title VII of the Civil Rights Act of 1964 ("Title
VII"). The decision in Oncale v. Sundowner Offshore Services Inc., US Sup.
Ct., No. 95-568 (3/4/98), resolved a split on this subject in both the federal appellate
courts and several lower courts. Joseph Oncale, one of an eight-member, all-male crew
stationed on an offshore drilling rig, claimed
sex discrimination following several
incidents of offensive, sex-related behavior directed at him by other crew members. Oncale
resigned after complaints to his supervisor did not resolve the problem. He then filed sex
discrimination charges under Title VII, claiming his coworkers’ harassment was based
on his gender and the conduct was so offensive it created a hostile work environment.
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Split in the Appellate
Courts
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Most of the appellate courts
that previously addressed this issue have ruled that
same-sex harassment can be sexual
harassment under Title VII if the employee’s sex is the basis for the harassment.
However, these courts differed in their analyses. The Fourth and Eleventh Circuits found
same-sex harassment only when the alleged harasser is homosexual. Alternatively, the Sixth
and Seventh Circuits determined that the sexual orientation of the harasser is irrelevant
in assessing whether illegal harassment occurred. The Fifth Circuit, in its decision in
the Oncale case, took the most restrictive view of same-sex harassment and
determined that Title VII does not apply to same-sex harassment situations, even when the
harassment has sexual overtones.
The Supreme Court’s
Decision
In addition to resolving the
split in the circuits by determining that Title VII does apply to same-sex harassment, the
Supreme Court stated that the sexual orientation of the alleged harasser and the victim is
not a consideration in these cases and does not have to be revealed. Further, the Court
indicated that Title VII is not meant to be a code of workplace civility but rather
prohibits conduct that is motivated by gender and that is so offensive to the reasonable
person that it alters the workplace environment. The Court did not rule whether the
specific behavior alleged in this case constituted a hostile work environment. The Court
did comment, however, that the specific conduct and social context should be a
consideration in each case of sexual harassment. The Court sent the case back to the Fifth
Circuit for further consideration.
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Implications for the
Workplace
This decision should have
limited application to the workplace, except for employers that have policies that refer only
to harassment between members of the opposite sex. Those policies should be revised to
remove the limitation. The Model Policy on harassment in Productive Work Environment,
Chapter 201A, currently prohibits unwanted touching and verbal harassment regardless of
who initiates the conduct, so all situations (male to female, female to male, and same sex
harassment) are covered by the policy provisions.
This case is not the Supreme Court’s last word on sexual harassment. The Court
will decide three other sexual harassment cases before the end of the summer. The most
important decision for employers may be in Faragher v. Boca Raton, Fla., US SupCt,
No. 97-282, 1998, where the Court will address when an employer is liable for hostile work
environment sexual harassment. For further information on same-sex harassment, see
Productive Work Environment, page 201A:14, note 20, which has been revised to reflect the
Supreme Court’s decision in Oncale.
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