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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. Split in the Appellate Courts 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. 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. This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.
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