Is Same-Sex Harassment Illegal?

Twice in the past decade the US Supreme Court has spelled out clearly that sexual harassment is a civil rights violation that Americans can sue over. Those landmark rulings, however, dealt with grievances between men and women.

What does the law say when the unwanted aggression is by members of the same sex? If a man is sexually bullied or threatened in the workplace by other men, for example, does that constitute harassment - as it would if a woman were abused?

That's the question posed before the justices yesterday as the Supreme Court heard its first-ever case dealing with "same-sex harassment."

How the justices rule could have important ramifications for American businesses. Sexual harassment has become one of the most sensitive - and costly - workplace issues of the 1990s. Since 1991, when Anita Hill alleged Supreme Court nominee Clarence Thomas harassed her, the number of federal complaints filed annually has doubled.

And legal costs are rising. Earlier this year, a Cleveland-based company paid a record $1.3 million to settle a suit filed by 17 women workers.

The case now before the court deals with Joseph Oncale, who worked for $7 an hour as a roustabout on an oil rig off the shores of Louisiana. At various times on Oct. 25, 1991, Mr. Oncale says two fellow workers and one supervisor attacked him; pinned him down, touched him in a sexual way, threatened to rape him - and then repeated similar abuse again in the following days. Neither Oncale nor his attackers is homosexual. Oncale, unable to sleep at night during his week-long shifts on the rig, eventually quit. He sued his employer under Title VII of the 1964 Civil Rights Act, claiming sex-based discrimination.

Questions by the justices yesterday, led many reporters present to conclude that the high court might unanimously decided to allow same-sex harassment claims. Chief Justice William Rehnquist pointed out that if Oncale could not sue, then "any man who discriminates against a man or a women is immune, and that seems difficult to justify."

Yesterday's oral argument was only the third case the court has heard on sexual harassment. So far, the court, even its conservative members, have strongly supported laws upholding the right to sue. In 1986, the court agreed that "unwelcome advances" were grounds for harassment. In 1993, that legal ground was expanded to allow suit by victims who claimed "a pervasive atmosphere" or "climate" of sexual abuse.

Indeed, this area of law is so new that the high court could this term create a new legal standard that makes sexual misconduct a federal violation, regardless of gender. Currently, the lower courts are in disarray on the question, with some saying there is no claim for "same sex" harassment, others saying there is a claim if one party is homosexual, and still others allowing "same sex" suits to proceed.

"This case is similar to those classic cases 20 years ago, when the courts first recognized that harassment was an actionable offense," says David Gregory of St. John's University School of Law in New York. "The larger question is, how do you deal with sexualized violence - something that touches adults, minors, men, women, gays, and lesbians?"

Under Title VII civil rights laws, an employer cannot "discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's .... sex." In 1980, the Equal Employment Opportunity Commission (EEOC) sharpened that law to include men and women who suffer unwanted "verbal or physical contact."

Lawyers for the company that operates the oil rig, Sundowner Offshore Services, yesterday argued that the EEOC requirements have always required "proof" that abuse is sexually based. They said that there is a distinct difference between behavior in an all-male environment where high jinks and locker room antics, while ugly and illegal, are not principally sex-driven but take place for complex reasons that can't be reduced simply to sex.

Lawyers for Oncale said their clients claim is sexual harassment because he was selected out and tormented for reasons that, while not due to reasons of sexual preference, such as homosexuality, were sex-based nonetheless since they were designed to degrade and humiliate him using unwelcome and violent sex conduct as the main element of abuse. His "maleness" was the issue.

"This is not about defining the outer limits of same-sex harassment," said Nicholas Canaday, Oncale's lawyer, "but about whether such claims can be brought at all."

The Supreme Court must decide whether such conduct is harassment. If it does so, moreover, the court may also have to spell out a standard that can be used to distinguish between harassment, and merely bad behavior.

MEANWHILE, this continues to be a contentious issue in offices and factories around the country. According to the EEOC, Title VII sexual harassment claims by men now account for about 11 percent of all such claims. That's up from nearly 500 in 1990 to some 1,600 in the fiscal year ending in September. The agency does not track male-on-male sexual violence as a category; but a spokesmen says the overall increase certainly reflects more male-only claims.

Some 50 federal lower courts have ruled on same-sex harassment in recent years - a category that was virtually non-existent in the 1980s. Indeed, the lack of a high court ruling means that most sex discrimination and harassment law is made by lower-court judges.

The high court's choice of Oncale is itself legally interesting, scholars say, since there were a half-dozen other possible same-sex harassment petitions before the court, including a Virginia case where a heterosexual male employee at a Pizza Hut was hazed by other employees, most of whom were homosexuals.

By contrast, the Oncale case came out of the US Fifth Circuit Court of Appeals, where no "same sex" claims are allowable. It was the petition before the Supreme Court this term with the least judicial interpretation and case history to it - giving the nine justices an almost clean slate to write their opinion on.

Oncale won't be the last sexual harassment case before the high court this term. Last month, the court agreed to take a case involving a Florida lifeguard. At issue is whether employees, as well as the lifeguard's employer, can be forced to pay damages in a sexual harassment suit.