Same-Sex Harassment Violates Title VII

On March 5, 1998, the Supreme Court held, in a unanimous decision, that the same principles of law which protect employees from aggression, ridicule and intimidation because of their sex bans such conduct whether directed toward a person of the opposite or the same sex. The decision dealt with a complaint by a male oil rig worker, Joseph Oncale, that he was being subjected to sexually oriented and embarrassing encounters, unwanted touching and threats of rape, which led him to quit after the employer failed to stop the behavior. Such conduct by, for example men in a work setting toward female co-workers, is clearly sexual harassment, which creates a hostile work environment. The import of the Court's decision is that the lower federal courts should consider predatory or hostile behavior which is based on sex to be a violation of Title VII, regardless of the sex of the parties involved.

Title VII prohibits discrimination based on sex, such as treating employee's of a particular sex in an "objectively offensive" manner. Justice Scalia, who wrote the opinion for the Court, stated in the unusually short seven-page opinion that "common sense and appropriate sensitivity to the social context," were to be considered by judges and juries in these cases. For example, wrote Justice Scalia, a professional football player would not be embarrassed or harassed if his coach smacks him on the buttocks as he heads out onto the field" but this same action "would reasonably be experienced as abusive by the coach's secretary, (male or female) back at the office." Therefore, sexually oriented language, actions and especially touching which is directed toward another employee, in an unwanted and offensive manner, using "common sense" in the analysis, can be a form of discrimination based on sex.

The decision retains the concept that the behavior, to constitute a violation of Title VII, must be more than an occasional slip or lack of civillity. Justice Scalia emphasized that the conduct complained of must be relatively outrageous or continuous, in spite of objections to be seen as a violation. "The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offesive as to alter the conditions of the victim's employment." It is on this basis that a single incident has been held by many courts to be insufficent proof of discrimination based on sex.