U.S. Supreme Court Rules Same-Sex Harassment Unlawful

By Julie A Moore, Esquire
Reprinted with permission of the New Hampshire Bar News, April 1, 1998

In a much anticipated decision, the United States Supreme Court recently issued a unanimous ruling banning same-sex harassment in the workplace. In Oncale v. Sundowner Offshore Servs., Inc. (No. 96-568, March 4, 1998), the Court extended federal protection under Title VII of the Civil Rights Act of 1964 to employees harassed on the job by members of the same sex, without regard to the sexual orientation of either the harasser or the victim. While the Equal Employment Opportunity Commission, in its guidelines, previously recognized same-sex harassment (EEOC Compliance Manual Sect. 615), there had been no concurrence of opinion among the federal courts or the circuits that have analyzed the issue.

The facts the court examined are as follows: Joseph Oncale, a Sundowner Offshore Services employee, worked as a roustabout on a Chevron U.S.A. oil platform in the Gulf of Mexico. On several occasions, Oncale claims he was subjected to sex-related, humiliating comments by two of his supervisors and a co-employee. Additionally, the two supervisors allegedly physically assaulted him in a sexual manner. Oncale complained to the company but, instead of investigating further and taking appropriate action, the company’s safety compliance clerk told Oncale that he, too, had been taunted by the supervisors. No action was taken. Fearing that he would be raped, Oncale quit.

Title VII statute states, in relevant part: "It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s. . . sex. . ." 42 U.S.C. Sect. 20OOe-2(a)(1) (emphasis supplied). Interpreting that gender-neutral provision, the Supreme Court found, "[N]othing in Title VII necessarily bars a claim of discrimination because of . . . sex, merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." Relying on its earlier seminal decisions, the court broadly condemned pervasive or severe intimidation, ridicule and insult in the workplace that creates an abusive working environment for men or women. Title VII is violated when behavior is "so objectively offensive" that it creates a hostile work environment.

While the court paved the way for alleged victims of same-sex harassment to bring suit, it did not, however, open the floodgates for all employees exposed to friendly horseplay, hazing, or sexual language to recover damages. To be cognizable, a sexual harassment claim must have the effect of exposing members of one sex to "disadvantageous terms or conditions or employment to which members of the other sex are not exposed." In other words, plaintiffs must prove actual discrimination because of sex. In its decision, the court urged a common sense approach to the finding of actual circumstances at issue in determining whether the alleged offensive words or action cross the line from innocuous behavior to unlawful harassment. Title VII was not meant to be nor can it reasonably be construed as a "general civility code" or clean language act.

With the definition of sexual harassment expanded, the number of recognizable harassment claims will increase. A litigation explosion, nevertheless, is unlikely.

Same-sex harassment suits have already been considered by the New Hampshire federal court on several occasions. In King v. Town of Hanover, for example, Judge DiClerico of the U.S. District Court explicitly recognized same-sex harassment as falling within Title VII’s purview. In that case, the plaintiff charged that his supervisor made sexual comments to him and gestures suggesting that he was homosexual. The Court rejected the employer’s argument that same-sex harassment was not unlawful under Title VII and denied the employer’s summary judgment motion because issues of material fact existed as to whether the complained-of misconduct was because of the plaintiff’s gender.

In another case, Drew v. First Savings of New Hampshire, the plaintiffs, former employees of the bank, charged that the branch manager’s policy of requiring female employees to hug her when she gave them their paychecks was unlawful. The gravamen of their complaint was that they received two uninvited hugs over a three-week period, accompanied by candy and a note signed "Love, Steph (the branch manager)" and, after complaining to human resources, they were rebuffed. Judge Devine found that the alleged misconduct was insufficiently severe or pervasive to create an abusive working environment but did not dismiss the case on grounds that no cause of action existed. Madon v. Laconia School District also discusses same-sex harassment where the plaintiff, a teacher, alleged that the school principal grabbed his private parts and, on another occasion, stood uncomfortably close to him without touching him. Also of interest is Bartholomew v. Delahave, where summary judgment was denied, with the court relying, in part, on the employer’s failure "to demonstrate why men, but not women, violate Title VII when they subject other women to conduct which is charged with anti-female animus".

At least inferentially, the First Circuit has previously considered same-sex harassment claims. In Moran v. Massachusetts General Hospital, the plaintiff asserted that a co-worker whom he believed to be homosexual made sexual advances toward him. Rejecting his claim, the First Circuit affirmed the dismissal of the plaintiff’s claim because he failed to demonstrate that the complained-of incidents were sufficiently pervasive or severe such that they interfered with the worker’s performance.

Educating employers about same-sex harassment as part of sexual harassment training programs is crucial. Anti-harassment policies should now explicitly state that the employer will not tolerate any form of harassment. In providing examples employers should include scenarios where the employees are of the same sex. Of course, employers should also investigate and take remedial action, if necessary, whenever employees lodge sexual harassment complaints.

Julie A. Moore, Esquire of Employment Practices Group in North Andover, Massachusetts, specializes in risk-management, workplace training and internal investigations on sexual harassment and other employment issues. She is admitted to practice law in Massachusetts and New Hampshire. She can be reached at jmoore@employmentpg.com or 978-975-0080.