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  • Oncale v. Sundowner

  •   Justices Hear Harassment Case

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, December 4, 1997; Page A25

    When Joseph Oncale was working as a roustabout on an offshore oil rig in 1991, his boss and two co-workers sexually taunted and abused him. What was unusual in this case was not just that the victim was a man, but that so were his harassers.

    "You know you got a cute little ass," Oncale's supervisor allegedly said. "I'm going to get you." It went far beyond aggressive horseplay or typical male hazing, Oncale said. He complained to an official of Sundowner Offshore Services about abuse that included threats of rape, but the company supposedly did nothing about it. At one point, the men grabbed him in the shower and forced a bar of soap between his buttocks.

    After the shower incident, Oncale, then 21, quit and sued under a federal law prohibiting sexual harassment on the job. But a lower court threw out his case, saying a man who claims he was victimized by other men cannot rely on a law that was written to protect women from men.

    Yesterday, in one of the most closely watched disputes of the term, the case went before the Supreme Court for a decision that will establish whether same-sex harassment is covered by the country's leading federal statute barring sex discrimination in the workplace.

    A majority of the justices seemed inclined to find that civil rights law applies even when the victim and harasser are the same sex. But several noted that, even if the law covers same-sex misconduct, an alleged victim still must show the harassment occurred because of his sex.

    Justice Ruth Bader Ginsburg, whose expertise is in sex discrimination law, said it might be hard to know whether a man was singled out for harassment because of his sex when the workplace is composed entirely of men, as was the situation on Oncale's oil rig in the Gulf of Mexico.

    "There was no other sex involved in this case," she said. ". . . How can we know how these gross people would have treated women?"

    Title VII of the 1964 Civil Rights Act makes it illegal for an employer "to discriminate against any individual . . . because of such individual's . . . sex." In 1986 the high court ruled that sexual harassment is a form of job discrimination and is covered under civil rights law when it leads to the loss of a job or creates a hostile working environment. Since then, however, lower courts have split on whether a successful harassment claim can be brought only by someone of the opposite sex of the alleged harasser. A ruling by the high court would have broad implications for the workplace, according to gay rights groups and civil libertarians.

    Sexual harassment claims to the U.S. Equal Employment Opportunity Commission have more than doubled since Oncale's alleged attack in 1991 – to about 16,000 complaints a year. During that time the number of charges filed by men has risen from 8 percent to 12 percent of the total complaints. The EEOC does not keep track of the sex of the alleged harassers, but experts in the field said that many of the complaints brought by men are believed to be against other men.

    The intense hour of oral arguments revealed a court seriously struggling with the modern workplace and the reality of sexual intimidation between two men or two women as well as between a man and woman.

    Chief Justice William H. Rehnquist said at one point, "I don't see how we could possibly sustain the ruling" by the U.S. Court of Appeals for the 5th Circuit that found same-sex harassment is never covered by civil rights laws.

    But the chief justice and Justice Sandra Day O'Connor especially emphasized that the 1964 law was intended to prohibit "discrimination" between the sexes: showing that abusive hazing occurred is not enough.

    Baton Rouge lawyer Nicholas Canaday III, representing Oncale, said he just wants a chance to have the facts of the case heard in court. Instead, his client has been barred from even filing a claim under the civil rights law. Because the conduct was sexual in nature, offensive and unwelcome, Oncale's lawyer claims, his client should be able to sue under Title VII for the lost job, pay and other damages.

    For its part, Sundowner has described the conduct as all-male hazing in an all-male environment. Oncale and the men who are accused of attacking him – supervisor John Lyons and co-workers Danny Pippen and Brandon Johnson – are all heterosexual.

    The Justice Department has sided with Oncale, noting that the EEOC has long considered same-sex sexual harassment to be covered by civil rights law. The department said a person should never automatically be barred from a claim, even if a work force is made up of employees of all one sex.

    When Deputy Solicitor General Edwin S. Kneedler presented the government's case, O'Connor asked about "an employer who has the unfortunate habit of patting every employee – both male and female – on the fanny every day." Kneedler acknowledged that such actions across-the-board might not be "because of sex."

    But Kneedler and Justice David H. Souter suggested that a person would be able to make a stronger case when the behavior was as sexual in nature as Oncale's allegations.

    Sundowner lawyer Harry M. Reasoner, of Houston, told the justices that while Title VII allows a man to claim discrimination in pay or other work policies because of a male boss's actions, he cannot allege sexual harassment against another man. He said Congress in 1964 focused on the subordination of women and traditional inequalities on the job and did not intend to cover all sexual behavior in the workplace.

    Justice Stephen G. Breyer made the point to Reasoner that Title VII, which also protects against bias based on race and religion, allows blacks to sue for the discrimination caused by other blacks and Jews to sue for actions by other Jews. Why isn't it then possible, Breyer asked, for a man to sue for another man's sexual harassment?

    A decision in the case of Oncale v. Sundowner Offshore Services is likely before the court recesses next summer.

    © Copyright 1997 The Washington Post Company

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