Same-sex Harrasment

Same-sex Harrasment in the Workplace: The United States Supreme Court renders its Verdict

By: William D. Berard III , Attorney at Law
McGrath Trainer

In the past we have viewed the issue of sexual harassment in the workplace as unwelcome conduct which was sexual in nature and gender based. Such conduct is prohibited under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Act. These statutes afford complainants legal recourse, including money damages.

Through the years the courts have addressed sexual harassment at work or school where the parties were opposite gender or one of the parties was homosexual. There was, however, never a nationally decisive legal opinion to address the issue when both the individuals were heterosexual and members of the same sex.

A Unanimous Decision
On March 4, 1998, the Supreme Court of the United States issued its decision in the case of Joseph Oncale v. Sundowner Offshore Services, Inc., and answered the question whether same-sex sexual harassment is, in fact, discrimination under Title VII. The petitioner, Joseph Oncale, was an employee of the respondent, Sundowner Offshore Services, Inc.,working on an oil platform in the Gulf of Mexico. He was a member of an eight man crew. The evidence submitted to the Court established that on numerous occasions the men forcibly subjected him to sex-related, humiliating actions in the presence of the rest of the crew. Oncale was also physically assaulted in a sexual manner by a fellow employee and threatened by several of the crew members. He complained of this treatment to his supervisor, but no remedial action was taken. As a result, he left his employment , stating that he “voluntarily left due to sexual harassment and verbal abuse.”
On March 4, 1998, the Supreme Court of the United States through Justice Scalia rendered a unanimous decision holding that sex discrimination consisting of same sex sexual harassment is actionable under Title VII (and by inference Title IX). The Court held that Title VII’s language of “because of sex” protects men as well as women and that Title VII does not bar a claim of discrimination “because of sex” merely because the plaintiff and defendant, or the person charged with acting on behalf of the defendant, are of the same sex.

Justice Scalia concluded “the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the complaining person’s position would find severely hostile or abusive.”

Discrimination “Because of Sex”
Justice Scalia, however, cautioned that Title VII does not prohibit all verbal or physical harassment in the workplace but rather is directed only at discrimination “because of sex.” He stated that workplace harassment, even harassment between men and women, is not automatically discrimination “because of sex” within the meaning of Title VII, merely because words used have sexual content or connotations. The critical issue is when members of one sex are exposed to disadvantaged terms or conditions of employment to which members of the other sex are not exposed.

The Court stated that the harassing conduct does not have to be motivated by sexual desire to support an inference of discrimination on the basis of sex. In fact, Justice Scalia stated that in order to support a same sex sexual harassment claim, the plaintiff may offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed sex workplace.

Severe or Pervasive Conduct
The Court also cautioned that to constitute sexual harassment under the law the conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment. The hostility and abusiveness of the environment is judged by a reasonable person in the same position as the complainant. This acid test screens out merely offensive behavior and ensures that courts and juries do not mistake ordinary socializing in the workplace, such as male on male horseplay or inter sexual flirtation for discriminatory “conditions of employment.” The objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering the totality of the circumstances.

Social Context
In same-sex sexual harassment cases, as in all sexual harassment cases, the investigative inquiry surrounding the behavior requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. Justice Scalia gives an example of social context, referring to a professional football player’s working environment. The Justice states that it is not severely or pervasively abusive if the coach smacks him on the buttocks as he heads onto the field, even though the same behavior would reasonably be experienced as abusive by the coach’s secretary “male or female” back at the office. (Similarly, in schools we need to consider the full context of an adult coach slapping the buttock of a player who is a minor. In this instance, you need to factor in the harm of adult to student abuse.)

Justice Scalia concluded “the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the complaining person’s position would find severely hostile or abusive.”

What is this “Context” Thing?
At McGrath Systems we emphasize in all our trainings, including Sexual Harassment Investigation and Employee Evaluation and Supervision (McGrath S.U.C.C.E.E.D. System), how crucial it is to review the social context in which conduct occurs. Context is one of the key components in our problem-solving logic formulae which we have nicknamed “F.I.C.A..” This logic formulae guides managers and investigators in grappling with the inter-relatedness of the Facts – Impact – Context – Action of every situation.

In our experience, people find the notion of context confusing. We all are inclined to jump to conclu-sions without considering what else is occurring around the events in question. Both articles in this issue of the Employment Newsletter, bring home the point that context cannot be overlooked or avoided in any complaint of employee misconduct. Supervisors must grapple with the surrounding circumstances rather than jump to conclusions.

Of course, our ultimate goal in the workplace is to eliminate inappropriate sexual behavior completely. Sexually inappropriate behaviors are a breeding ground for later claims of sexual harassment.

What can you do? Provide sexual harassment awareness training to all employees, students, and interns. Investigate complaints, rumors, and possible predatory behaviors immediately. Intervene and stop misconduct early, before it becomes “severe and pervasive.”

Summer 1998 McGrath Employment Newsletter

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