Same sex harassment

Imagine that you are in the shower of the gym at work and three co-workers enter, then hold you down to the ground while rubbing their genitalia across your bare skin. No matter what the circumstance you would find this behavior appalling and disgusting. Now think to yourself if every person involved had been a male. Would you say that they were just “horsing around?” I hope not.
The attitude of American society and legal culture regarding sexual harassment has changed over the last 35 years. Our progressive society has finally decided to look at the issue of whether harassment of a sexual nature by a member of your same gender is included in what Title VII of the Civil Rights Act of 1964 was trying to protect employees against. Several courts have permitted same sex harassment; they were however, at odds over whether such claims were valid if the harassing individual were heterosexual.Claims have been found unlawful when one individual is homosexual thus the harassment involved sexual desire or interest. This was one issue at hand in the controversy over same sex harassment, whether or not both individuals could be heterosexuals. Although nowhere in Title VII does it say anything about sexual harassment or the conduct being based on sexual desire courts have interpreted the laws prohibition of discrimination based on an individual’s race, color, religion, sex or national origin to include sexual harassment as a form of discrimination.
Title VII makes it, “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.”Title VII protects men as well as women, and in the context of racial discrimination it has been widely rejected that an individual will not discriminate upon members of their own protected class.
Under Title VII there are two kinds of sexual harassment quid pro quo and hostile environment. The first, quid pro quo, is when a person in a supervisory position places the performance of sexual favors as a condition on sustaining or gaining employment or other employment benefits. Harassment of this type holds the employer strictly liable for all damages to the affected employee. The second, hostile environment harassment occurs when behavior by a co-worker or supervisor is pervasive enough to have a negative effect on the employee. The employer is only held liable for hostile work environment harassment when they had knowledge of the situation or the situation was so pervasive that the employer should have known about it.
Despite the changing attitude towards sexual harassment in America, the courts have been divided on the issue of same-sex harassment. Several federal district courts skirted around the issue, but one court met this issue head on when Joseph Oncale filed suit in an Eastern Louisiana District Court against his former employer Sundowner Offshore Services, Incorporated.
Joseph Oncale, a roustabout on an oil platform for Sundowner Offshore Services, Incorporated in the Gulf of Mexico, was approached in the shower by co-workers and sodomized with a bar of soap. On other occasions, these co-workers, John Lyons, Danny Pippen, and Brandon Johnson, subjected Oncale to humiliating acts such as restraining him while placing their penises on his neck and arms. Lyon’s, the crane operator, and Pippen, the driller, both had supervisory positions although neither one was Oncale’s immediate supervisor.
Oncale complained to Sundowner’s Safety Compliance Clerk, but the clerk told Joseph that the men made fun of him as well by calling him names suggesting homosexuality.The company failed to take any action against the three employees. After months of recurring encounters Oncale resigned from his position and filed a complaint against Sundowner in the Easter Louisiana District Court. His complaint held that the physical harassment containing such blatant sexual overtones was a violation of Title VII of the Civil Rights Act of 1964.
Louisiana courts held that Garcia v. Elf Atochem North America 28 F.3d 446, was standing precedent.In Garcia, the court held that a male employee’s alleged sexual harassment by a male superior does not constitute a claim under Title VII even though the harassment had sexual underpinnings. The Louisiana court maintained their finding that the law does not cover same-sex harassment therefore Oncale had no cause of action under Title VII for harassment by same gender co-workers.
Same sex harassment has been an issue that courts around the nation have been forced to address, and they have reached varying and conflicting conclusions. With such a controversial issue arising more often in Federal District Courts, the Supreme Court decided to grant a writ of certiorari so that the topic could be resolved.
As in most Supreme Court cases there were many political concerns by interest groups and lobbyists. One of the most predominant concerns raised was that by recognizing same sex harassment, Title VII would become a general civility code for conduct in the workplace.The other was that those who have never had reason to be discriminated upon in the workplace, will now have an outlet against their employers.
In the Supreme Court decision these questions as well as others were addressed. The court held that same gender harassment may be actionable under Title VII of the Civil Rights Act, even if the harasser is heterosexual. The Supreme Court explained that it could find “no justification in the statutory language or our precedents for a categorical rule excluding same sex harassment claims from the coverage of Title VII.”The court also acknowledged that the decision to outlaw same sex harassment raises questions as to what constitutes sexual harassment in any form.

Justice Scalia in his decision, outlined the parameters of Title VII and the Equal Opportunity Employment Commission Guidelines on sexual harassment. He reiterated the purpose of the Civil Rights Act to prohibit an employers discrimination with respect to compensation or employment status based on any of the suspect classes. He notes that the act shows the noble intent of congress to eliminate all forms of disparate treatment of men and women in the workforce.Scalia relies on the holding in Harris v. Forklift Sys., Inc. 114 S.Ct. 367, when the court held that,
“Title VII is violated when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
The language of the law makes no gender distinctions , in turn it is not the courts position to interpret the law any other way than that which it is written.

The court notes that there is very little information regarding the intent of the Congress which enacted the Civil Rights Act. Allegedly “sex” was originally included as a suspect class in an attempt to defeat the Act.Regardless, the court reasoned that although male on male harassment was most likely not the original intent or even a secondary concern when Congress enacted Title VII, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”Despite what the original intent of the Act was in 1964, the Supreme Court redefined the scope of Title VII to include all forms of sexual harassment which meet the statutory guidelines.
In the response to concerns that this decision would turn Title VII into a code of conduct for the workplace, the court restated the requirements to qualify as sexual harassment. Title VII requires two prongs to test for sexual harassment. First the behavior must be discriminatory and second the behavior has to be offensive enough to alter the victims’ workplace. That is, merely using words of a sexual nature does not constitute a violation of Title VII. It is imperative that there are disadvantaged terms or conditions of employment which only pertain to one gender. The second requirement is made to ensure that harmless horseplay or intersexual flirtation is not misconstrued as sexual discrimination.The behavior has to be severe and pervasive throughout the workplace to cause an alteration in the workplace that a reasonable person would find hostile or abusive.

The Equal Employment Opportunity Commission Guidelines define sexual harassment as unwelcome sexual advances when made a condition of employment, rejection or performance of sexual requests is used in making employment decisions or the conduct substantially interferes with the individuals work performance due to a hostile or intimidating environment. In order to show a hostile work environment one must prove five criteria. The first of the five is that the victim must be a member of a protected group or suspect class. Secondly, you must have been the subject of unwelcome advances of a sexual nature. Third, the harassment was based on the victims sex and not any other characteristic. Fourth, the victim is required to show an affect on their employment terms or conditions, and fifth the employer must have knowledge as well as failure to act on that knowledge.
These guidelines will help to ensure that there are no abuses of the new broader interpretation of Title VII, however, the decision of the court still leaves a few questions unanswered. First of all, under the definition of same sex harassment, is discrimination because of sex a group or individual injury?In other words does the entire class of the effected gender have to be discriminated upon or can an isolated incident have a viable claim under Title VII and the Equal Employment Opportunity Guidelines? Secondly, do the new guidelines set forth in Oncale v. Sundowner 118 S.Ct. 998, place a heavier burden of proof on the victim for all sexual harassment claims than before?Finally, is there a remedy available to victims of sexual harassment who fall outside the guidelines or is there simply no action to be brought?
To answer these questions as well as possible you must look beyond the opinion of the court. None of the opinions specifies whether or not the discrimination has to be against a group, or if an individual being discriminated against because of sex, has a claim under Title VII and the EEOC guidelines. Looking at the statute referred to by Scalia, it states that it is, “unlawfulto discriminate against any individual.”This leads one to believe that same sex harassment can be either an individual or a group injury.
As for the heavier burden of proof being placed upon the victim it seems as if heterosexuals bringing a same sex harassment case must prove the fifth element of causation in the guidelines when it would be unnecessary for a member of the opposite sex to prove this. It is placing the responsibility on the plaintiff to show that the harassment was “because of sex.”Many courts in attempts to fulfill the fifth element have relied on the “but for” approach. “An employee is harassed or otherwise discriminated against because of his or her sex, ‘but for’ the employees sex, he or she would not have been the victim of such discrimination.”The court is trying to stay away from inferring that one must prove sexual desire while preventing cases that are based merely on sexual connotations in conversations.
The last question, what happens if the harasser falls outside of the boundaries laid out in the Oncale case? “Oncale may have expanded the coverage but restricted the liability under the law.”By placing such guidelines on sexual harassment the courts have implied that employers are not responsible for all harassment which goes on in the workplace. While the court has broadened the scope of Title VII to include same sex harassment, it has increased the restrictions to validate all harassment cases. If a claim does not fall into the guidelines set forth in the Oncale case it leaves certain victims with no alternate route or cause of action in the legal system. This allows the “equal opportunity harasser” who discriminates on both male and female employees to be beyond the scope of Title VII since the harassment is not because of sex.
Some concerns for the long-range effects of the Oncale decision have been voiced. Fears that the broadened scope of Title VII claims will allow, “a flood of sexual harassment claims from a class of people who have never faced barriers to gender equality in the workplace,” and the ultimate result being lesser protection for those women and men the legislature was intending to protect.

The courts acknowledge the existence of a fine line between horseplay and flirtation that may be a normal part of the workplace, and sexual harassment as discrimination in the workplace. The opinion of the court was written in a way to only forbid objectively offensive behavior to protect against frivolous claims.


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