The Leadership Conference on Civil and Human Rights

Volume 10 No. 2

SEXUAL HARASSMENT DECISIONS, SUPREME COURT 1997-98 TERM

During the 1997-98 term, in addition to the Gebser case, the Supreme Court issued decisions in three cases that addressed sexual discrimination. These cases involved sexual harassment in the workplace, and the decisions provided clarification as to employer and employee responsibility and liability.

In the workplace cases, the Court held that same-sex harassment is covered under current law; that a company is responsible for the harassment committed by its supervisory employees even if it did not know of the conduct; and that a legitimate claim of sexual harassment can be made even if the complainant did not submit to the harassment nor suffer detriment. The Court held that a school district cannot be held liable for the actions of its teachers unless it knew of the harassment and failed to act. These seemingly contradictory decisions are best explained by differences in the federal statutes covering harassment at school versus the workplace. Title VII of the Civil Rights Act outrightly prohibits sex discrimination in the workplace, while Title IX of the Education Amendments covers discriminatory behavior under educational programs and activities that receive federal funds.

Background

Title VII of the 1964 Civil Rights Act makes it illegal to refuse to hire or discriminate against an individual with respect to compensation, terms, conditions or privileges of the job on the basis of race, color, national origin, religion and sex. In 1986, in Meritor Savings Bank v. Vinson, the Court held that a work environment violated Title VII where sexual harassment was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

Following the 1986 decision, the Equal Employment Opportunity Commission issued guidelines defining essentially two types of sexual harassment: "hostile environment" and "quid pro quo." Hostile environment refers to harassment in which the unfavorable behavior disrupts one's ability to carry out his or her job or creates an intimidating hostile environment. Quid pro quo harassment refers to a request made for sexual favors that is tied to promotions or other employment conditions.

Prior to 1998, the Supreme Court had ruled in only one other sexual harassment case, Harris v. Forklift Systems in 1993. In that case the court ruled unanimously that to prevail in a sexual harassment case filed under Title VII, one need not prove that he or she suffered severe psychological harm ( See Monitor, Volume 7, Number 2). In her concurring opinion, Justice Ginsburg wrote, "It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job."

As discussed above, Title IX is the portion of the Education Amendments of 1972 that prohibits sex discrimination in educational institutions that receive any federal funds (see page 13 for exact language).

Oncale v. Sundowner Offshore Services

On March 3, 1998 the Supreme Court unanimously ruled for the first time that same-sex harassment claims are actionable under Title VII of the Civil Rights Act of 1964.

The case involved a young male oil rig worker from Louisiana, Joseph Oncale, who was sexually taunted and abused by his boss and two co-workers, all of whom were men. The verbal abuse Oncale underwent included threatening and sexually offensive remarks from a supervisor. The most serious of the alleged physical abuse occurred shortly before he quit when Oncale claimed he was brutally assaulted by men in the company shower.

Oncale reported the harassment to Sundowner Offshore Services, but the company failed to respond and Oncale ultimately quit, citing "sexual harassment and verbal abuse" as his reasons for leaving. Oncale filed a complaint against Sundowner in the U.S. District Court for the Eastern District of Louisiana alleging sex discrimination. The district court held that as a male he had no cause of action under Title VII for harassment by male co-workers, asserting that Title VII applied only to sexual harassment involving members of the opposite sex. On appeal, the Fifth Circuit affirmed. Oncale appealed and the Supreme Court granted review and heard oral argument in December 1997. Justice Scalia wrote the unanimous decision of the Court stating:

"We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed....

"Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimination...because of...sex.'"

The Supreme Court's decision sent the question as to whether Oncale was discriminated against because of his sex back to the district court for trial. The counsel for Sundowner contended that not only was the alleged behavior of Oncale's co-workers simple hazing or horseplay, but that Oncale will be unable to prove that the harassment would not have occurred if he had been a woman.

Justice Ginsburg, who argued many sex discrimination cases before becoming a Supreme Court Justice, in a concurrence noted the difficulty in knowing whether a man has been singled out for harassment because of his sex (which is what the federal law states as part of the description of harassment) if the workplace environment is comprised solely of men. "There was no other sex involved in this case," said the Justice. "How can we know how gross these people would have treated women?"

According to the U.S. Equal Employment Opportunity Commission, approximately 16,000 cases of sexual harassment are reported each year (up fifty percent from 1991), 12 percent of those claims are filed by men, and the majority of these claims allege harassment by other men.

Companies most likely to be affected by the Oncale ruling are those that are not managed well or have poor sexual harassment policies. Human resource executives such as Susan R. Meisinger, senior vice president of the Society of Human Resource Management states, "The majority of organizations today have sexual harassment policies that are intended to apply to all individuals, regardless of the gender of the alleged harasser or victim."