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  • Oncale v. Sundowner et al.

  •   Court: Same-Sex Harassment Illegal

    By Richard Carelli
    Associated Press Writer
    Wednesday, March 4, 1998; 6:15 p.m. EST

    WASHINGTON (AP) – Sexual harassment at work can be illegal even when the offender and victim are the same sex, the Supreme Court said Wednesday in a decision that could touch virtually every American workplace.

    In voting unanimously to revive a Louisiana lawsuit that has been closely watched by the nation's employers and gay-rights groups, the court said same-sex harassment can violate a federal anti-discrimination law.

    In that lawsuit, a man alleged he was sexually harassed by three other men while working on a Gulf of Mexico oil rig.

    Wednesday's decision provided important new guidelines for resolving sex-harassment claims, but plenty of questions remain about the legality of certain conduct in specific employment settings.

    "Common sense and an appropriate sensitivity to social context will enable courts and juries to distinguish" between what is legal and illegal, Justice Antonin Scalia wrote for the court.

    "We're very pleased with the commonsense standard the court adopted," said Ann Reesman, a lawyer for the Equal Employment Advisory Council, an employers' group. "This adds some clarity."

    Gay-rights advocates also praised the ruling. "Civil rights law will no longer unfairly exclude same-sex sexual harassment, and this fact will benefit all American workers," said Elizabeth Birch of the Human Rights Campaign.

    The ruling allows victims of homosexual harassment to get into federal court even though Congress never has said bias based on sexual orientation is illegal.

    Kathy Rodgers of the NOW Legal Defense and Education Fund said the ruling "once and for all places sexual harassment law squarely in the mainstream of anti-discrimination law."

    The term "harassment" does not appear in the text of the anti-bias law known as Title VII of the Civil Rights Act of 1964. But the Supreme Court ruled in 1986 that sexual harassment amounts to discrimination if it creates a "hostile environment" in the workplace.

    In subsequent rulings, the justices said a hostile environment can come about not only by overtly sexual behavior but also by "discriminatory intimidation, ridicule and insult ... sufficiently severe or pervasive to alter the conditions of the victim's employment."

    Scalia's seven-page opinion said, "We see no justification ... for a categorical rule excluding same-sex harassment claims from the coverage of Title VII." But he warned lower courts about mistaking "ordinary socializing in the workplace – such as male-on-male horseplay or intersexual flirtation – for discriminatory conditions of employment."

    All circumstances must be considered, Scalia said and gave the example of a football coach smacking the fanny of a player who's heading onto the field. Nothing illegal there, Scalia said, but that's not necessarily the case when the coach does the same thing to his secretary, male or female.

    He said concerns that Title VII will become "a general civility code for the American workplace" are misguided.

    "That risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute," Scalia said.

    He added: "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex. The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."

    In the Louisiana case, a federal appeals court threw out Joseph Oncale's lawsuit and ruled that the federal law never applies to same-sex harassment.

    His sexual-harassment claim stemmed from four months of work in 1991 as a roustabout assigned to a Gulf of Mexico oil rig with Sundowner Offshore Services.

    Oncale's lawsuit against Sundowner and three men said he was sexually assaulted, battered, touched and threatened with rape by his direct supervisor, John Lyons, and a second supervisor, Danny Pippen. Another defendant, coworker Brandon Johnson, was accused of assisting in one of the alleged incidents.

    Oncale, who now lives in a small town near Baton Rouge, said he twice reported the situation to his employer's highest-ranking representative on the job site, but no action was taken. He said he quit because he feared the harassment would escalate to rape. All three men named as defendants portrayed their conduct as hazing or locker-room horseplay.

    The Supreme Court's decision allows Oncale to take his lawsuit to a jury but does not ensure his ultimate victory.

    "I was pleased. I was shocked," Oncale said about the ruling. "I'm looking forward to going to trial."

    "This is not just for me. No one in any workplace should be harassed," he added. "It happened to me. It's been a struggle."

    Justice Clarence Thomas wrote a one-paragraph statement in which he said he joined the court ruling because it made clear there must be proof of "discrimination because of sex."

    Thomas' 1991 Supreme Court confirmation hearing was marked by sensational allegations of sexual harassment.

    © Copyright 1998 The Associated Press

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