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In a case watched
closely by both labor lawyers and employers, the Supreme Court ruled
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.
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.
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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.
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.
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. |
Personnel
Policy Service, Inc.
