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  • Oncale v. Sundowner et al.

  •   Court Says Law Covers Same-Sex Harassment

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, March 5, 1998; Page A01

    The Supreme Court ruled unanimously yesterday that a federal law against sexual harassment on the job covers misconduct even when the victim and the harasser are the same sex. The decision ensures for the first time that men who are taunted or abused by other men, and women who are harassed by women, can sue for damages.

    The justices said in their ground-breaking decision that the law covers homosexual situations, as well as harassment between two people of the same sex when neither person is gay.

    "It clearly states that no one should have to suffer sexual harassment when going to work in the morning," said Steven Shapiro, national legal director for the American Civil Liberties Union, "and it shouldn't matter if you are a man or a woman, gay or straight."

    Civil rights lawyers had argued that the law should apply beyond opposite-sex behavior, to cases, for example, in which male employees target a co-worker whom they regard as not "manly" enough, or a female supervisor who makes sexual advances toward female underlings. But some employer groups contended that the law – originally aimed at deterring men's discrimination against women – should not be transformed into a general prohibition on workplace misconduct or a code of civility.

    Jeffrey C. Londa, representing the Texas Association of Business and Chambers of Commerce, said the decision could raise the number of frivolous filings against employers and have the unintentional effect of encouraging companies to inquire into workers' sexual orientation. He noted the court said same-sex harassment may be inferred if the harasser is homosexual.

    Yesterday's case, coming as sexual harassment claims of all types are on the rise nationwide, involved a male Louisiana roustabout on an offshore oil rig who was subjected to sexual humiliation, assault and threats of rape by his boss and co-workers, all men.

    The victim, Joseph Oncale, complained to Sundowner Offshore Services, but the company supposedly did nothing and Oncale quit. A federal appeals court threw out his discrimination complaint, ruling that the federal law banning sex bias on the job, known as Title VII of the 1964 Civil Rights Act, applies only to behavior between the sexes.

    Reversing that stance of the 5th U.S. Circuit Court of Appeals, the Supreme Court said nothing in the law prohibits a claim of discrimination simply because the victim and offender are both men or both women.

    "[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII," Justice Antonin Scalia wrote for the court. "But statutory prohibitions often go beyond the principal concerns of our legislators."

    Responding to business's concern about frivolous filings, Scalia emphasized that "common sense" should prevail in all harassment cases. He said courts should not "mistake ordinary socializing in the workplace – such as male-on-male horseplay" – for sexual discrimination.

    "The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace," he said. "It forbids only behavior so objectively offensive as to alter the conditions of the victim's employment."

    The court emphasized that plaintiffs must show that they were targeted because of their sex and left open questions about how easy it will be for someone like Oncale, working in an all-male environment, to prove that the men picked him because he was a man.

    Advocates for gay men and lesbians, who had been closely following the case, praised yesterday's decision. "This is important for them because they often experience this form of harassment," said Beatrice Dohrn, legal director of Lambda Legal Defense and Educational Fund.

    In a similar vein, Elizabeth Birch, executive director of the Human Rights Campaign, said, "Civil rights law will no longer unfairly exclude same-sex sexual harassment, and this fact will benefit all American workers."

    Reaction from business was mixed. Londa, who had submitted a brief supporting Sundowner, said he feared a male subordinate could get fired and then sue, charging that he was in fact sexually harassed by a male supervisor who had simply put his arm around him.

    But Ann Elizabeth Reesman, general counsel for the Equal Employment Advisory Council, which represents business interests, noted that the court emphasized that the law still only applies to severe or pervasive misconduct.

    Scalia, who tends to narrowly interpret statutes, wrote, "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex."

    As an example, he said a pro football player who is smacked on the behind by the coach as he heads onto the field likely would not have a case, but the coach's secretary experiencing the same treatment might.

    Title VII makes it illegal for an employer to discriminate against any individual because of that person's sex. In 1986, the court said harassment is a type of discrimination. But in recent years, as same-sex harassment complaints have risen, courts have been split over whether they are covered by the law.

    The U.S. Equal Employment Opportunity Commission reports that sexual harassment claims have doubled since 1991, to 16,000 a year. The agency says 12 percent of those are filed by men. The government does not keep track of the sex of the alleged harassers but experts say that most of those brought by men are against other men.

    Yesterday's ruling in Oncale v. Sundowner Offshore Services sends the case back to federal district court to determine whether it meets the terms of federal law: that the victim was singled out because of his or her sex and the harassment was severe and pervasive.

    Oncale alleged that the abuse he endured went beyond aggressive horseplay. He said the men grabbed him in the company shower and forced a bar of soap between his buttocks and threatened to rape him.

    Sundowner lawyer Harry Reasoner said yesterday that while the men might have been "engaged in a kind of rough hazing," it did not rise to a level of illegal harassment. He also asserted that because all employees were men, Oncale will not be able to show that the mistreatment resulted from the fact that he was a man and would not have occurred had he been a woman.

    © Copyright 1998 The Washington Post Company

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