Keeping The Locker Room Out Of The Workplace: Same Sex Sexual Harassment Claims After Oncale

Most employers and their employees are keenly aware that sexually offensive language and conduct between men and women in the workplace may constitute an unlawful hostile environment actionable under Title VII of the Civil Rights Act of 1964 and state anti-discrimination laws. However, they are much less familiar with the potential for claims of same sex sexual harassment.

Same-Sex Harassment Claims

On the rise in recent years, these claims often involve allegations of quid pro quo or hostile environment sexual harassment by homosexual or bisexual perpetrators -- arguably a new twist on an old theme of sexual harassment motivated in part by sexual desire. Other quite different cases involve no allegation of homosexual desire but, instead, claims of "locker room" misbehavior and horseplay, dirty jokes, or other sexually offensive language or conduct among heterosexual members of the same sex.

Until now, the courts have treated same sex sexual harassment claims in divergent, contradictory ways, leaving a wake of confusion as to whether this type of harassment is actionable and, if so, what factual allegations are necessary to state such a claim under Title VII. Although sexual harassment victims have tended to be women, the courts have generally recognized that all employees are protected from sexual harassment.

Split of Authority

Courts have refused to limit Title VII's application to sexual harassment of women by men, but there has been a split of authority on whether Title VII's prohibition against discrimination "because of sex" in the workplace is applicable in cases involving allegations of harassment where the harasser is the same sex as the victim and what it takes to maintain an action for same sex sexual harassment. The United States Supreme Court has now resolved this issue.

By way of background, courts have been most willing to recognize a same sex harassment claim when the victim alleges that the harasser was motivated by homosexual desire. Recently, for example, in Fredette v. BVP Management Associates, 112 F.3d 1503, 1510 (11th Cir. 1997), the Court of Appeals for the Eleventh Circuit recognized such a claim, holding "that when a homosexual male supervisor solicits sexual favors from a male subordinate and conditions work benefits or detriment on receiving such favors, the male subordinate can state a viable Title VII claim for gender discrimination." Courts within the District of Columbia, First, Second, Third, Fourth, Sixth, Eighth, Ninth and Tenth Circuits similarly recognized that a claim for same sex harassment may be viable where the harasser was homosexual or bisexual. See, e.g., Yeary v. Goodwill Industries-Knoxville, Inc. 107 F.3d 443 (6th Cir. 1997).

Different Treatment Based on Sexual Orientation

Some courts limited same sex harassment claims under Title VII to those cases involving harassment by a homosexual or bisexual. In Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996), the Court of Appeals for the Fourth Circuit allowed a same sex harassment claim by a heterosexual male who alleged that his homosexual supervisor and other homosexual co-workers subjected him to a hostile environment in the form of sexual advances that included graphic and explicit descriptions of homosexual sex and repeated sexually provocative touching intended to pressure the plaintiff into engaging in homosexual sex.

The fact that the plaintiff's sexual orientation may have been an issue in the case did not preclude a claim under Title VII. The court noted that "a Title VII cause of action lies even though the discrimination against the employee is not 'solely' because of the employee's sex, as long as the employee's sex was a cause of the discrimination." Id. at 144. The Court of Appeals for the Sixth Circuit took a similar approach. See Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 448 (6th Cir. 1997) ("when a male sexually propositions another male because of sexual attraction, there can be little question that the behavior is a form of harassment that occurs because the propositioned male is a male that is, 'because of . . . sex'").

Some Court have an Expansive View of Sexual Harassment

Other courts were taking a more expansive view of Title VII's implicit prohibition against sexual harassment and found same sex sexual harassment claims actionable regardless of the sexual orientation of the harasser. See, e.g., Williams v. District of Columbia, 916 F.Supp. 1, 10 (D.D.C. 1996).

The most difficult cases the courts have faced in this area have involved allegations of harassment based upon speech or conduct such as dirty jokes, persistent teasing, sexual banter, or playful touching -- the sort of childish locker room horseplay and antics that are commonplace in many predominantly male work environments -- between heterosexuals of the same sex. These cases involve no claim of any sexual desire for the victim by the harasser.

The Seventh Circuit Court of Appeals recently recognized the viability of such a same sex harassment claim under Title VII. In Doe v. City of Belleville, Illinois, No. 94-3699, 1997 WL 400219 (7th Cir. July 17, 1997), the harassers and the victims were all heterosexual, and the plaintiffs alleged that they had been subjected to sexual remarks and taunting, assaults, and abusive conduct by their co-workers. The court rejected the notion that a cause of action for sexual harassment depends upon a victim's ability to demonstrate that he or she was harassed because of his or her sex, emphasizing that it was not the comparative sex of the victim and harasser, the sexual orientation of the harasser, or any sexual motivation of the harasser that determined whether a same sex harassment claim was actionable.

Sexual Nature of the Harassment Controlling

Rather, the sexual nature of the harassing conduct was the controlling factor as to whether a sexual harassment claim was viable under Title VII. The court thus adopted the reasoning of other courts that have found the term "sex" within the statute as meaning "sexual," thereby expanding the definition of the phrase "because of sex" so as to encompass "offensive behavior of a sexual nature."

As an alternative basis for allowing the case to survive summary judgment, the court relied upon evidence that at least one of the plaintiffs was treated adversely because his conduct or appearance did not conform to stereotypical gender roles, noting that the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), had ruled that Title VII prohibits disparate treatment of men and women resulting from sex stereotypes.

Other courts flatly and steadfastly rejected same sex sexual harassment claims outright. See, e.g., Schoiber v. Emro Marketing Co., 941 F. Supp. 730 (N.D.Ill. 1996); Hopkins v. Baltimore Gas & Electric Co., 871 F. Supp. 822 (D.Md. 1994).

Supreme Court's View of Same Sex Harassment

Then, on March 4, 1998, the United States Supreme Court squarely held that "same-sex sexual harassment is actionable under Title VII." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (March 4, 1998). In Oncale, the plaintiff alleged that his male supervisor and co-workers brutally assaulted him and threatened him, although there was no clear suggestion that the conduct was motivated by sexual attraction. The Fifth Circuit Court of Appeals held simply, with virtually no analysis, that no claim of sexual harassment between members of the same sex could be viable under Title VII.

A unanimous Supreme Court disagreed 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." Id. In other words, whatever the gender and whatever the motivation, workplace harassment based on sex or sexual conduct is unlawful.

Summary

With Oncale decided, careful employers who have not yet done so should prohibit expressly all forms of harassment, whether between members of the opposite or the same sex, with no consideration as to the sexual orientation of the harasser. Apart from Title VII liability, employers also face actions under state anti-discrimination laws, several of which have likewise been construed by courts as allowing same sex sexual harassment claims. Thus, employers should ensure that harassment based upon "locker room" behavior and sexual banter between members of the same sex is clearly prohibited under their policies and train their employees accordingly.

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