50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions - Number 47: Same Sex Harassment Is Illegal


It seemed like a simple enough issue.  In 1984, the Supreme Court found that sexual harassment — when it is severe or pervasive — can alter an employee’s ability to work and thus can impact the victim’s “terms, conditions, or privileges of employment.”  Title VII doesn’t actually use the words “sexual harassment” and therefore there are no requirements in the law about the gender of the harasser and the victim.  Indeed, once Demi Moore sexually harassed Michael Douglas in the movie Disclosure, it was assumed that either a male or female could be harassed.

But, as the law of sexual harassment developed, there was one question that remained unanswered: could a plaintiff state a sexual harassment case against a member of the same sex?  One case held that same-sex sexual harassment claims could never be brought under Title VII.  Others foundf that same sex harassment claims could only be brought if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). And others found that same sex harassment was a perfectly reasonable theory and that sexual harassment claims could be brought regardless of the harasser’s sex, sexual orientation, or motivations.

So, by the time that Oncale v. Sundowner Offshore Services, Inc. made its way to the Supreme Court in 1998, the pundits were split in their predictions.  Almost no one expected that the decision would be 9-0 in favor of employees and would be authored by Justice Antonin Scalia, one of the most conservative justices in the Court’s history.

The facts were right out of a Hollywood movie.  Joseph Oncale worked on an oil rig in the Gulf of Mexico — literally an island filled exclusively with male employees.  During his time there, several male co-workers physically assaulted Oncale in a sexual manner, and one, in fact, threatened him with rape.

Justice Scalia, writing for the entire Court, found that there was “no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”  He acknowledged that same sex harassment claims were “assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but that the text of Title VII clearly did not prohibit such claims.

And so it was.  For the first time in the history of the country, same sex harassment was unlawful everywhere.  Even an oil rig in the Gulf of Mexico.


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Hirschfeld Kraemer LLP on:

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