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Supreme Court Rules on "Same Sex" Harassment

In Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998), the Supreme Court handed down a unanimous decision holding that "same sex" sexual harassment is actionable under Title VII of the Civil Rights Act of 1964. In that case, which arose in Louisiana, a male employee brought a sexual harassment suit against his employer and other male employees alleging thatwwhile working on an oil platform in the Gulf of Mexicowhe had been physically assaulted in a sexual manner and threatened with rape by male co-workers. The federal district court and intermediate appellate courts ruled in favor of the defendants, believing that a male employee has no cause of action under Title VII for sexual harassment by male co-workers.

Writing for the Court, Justice Scalia held that the standard for recovery in a same-sex case is the same as in other sexual harassment cases. However, Justice Scalia cautioned that the behavior at issue must be assessed in light of its context. "Common sense, and an appropriate sensitivity to the 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 plaintiff's position would find severely hostile or abusive."

The Court's decision emphasized that Title VII reaches "discrimination in employment - because of - sex." It viewed the Oncale case as the latest of many in which courts have held that the fact the alleged victim and the alleged discriminator are the same sex or race does not insulate the employer from liability. The Court sensibly limited liability to cases involving "conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." It is heartening that the Court re-emphasized that Title VII is an employment discrimination statute, not a remedy for every unfortunate act occurring in the workplace. To be actionable, the harassment must not only be "severely hostile or abusive" conduct must also be "because of" the victim's sex, meaning gender. The Court left for another day the difficult issue of the bisexual supervisor who sexually harasses both men and women. Oncale merely held that Title VII recognizes claims of same-sex harassment.

Interestingly, the Oncale decision was foreshadowed by an Eleventh Circuit decision arising from a case in which a Broad and Cassel attorney successfully represented the alleged individual harasser. The alleged harasser was ultimately dismissed from the suit because, the federal district judge held, neither Title VII nor the Florida Civil Rights Act allows cases to be brought against individual supervisors or managers. (The plaintiff later dropped the individual defendant from the appeal.) The judge also determined that allowing a Title VII suit where a heterosexual male allegedly harassed by a homosexual male supervisor amounted to an action based on the employee's sexual preference, a characteristic that is not protected by Title VII, and so entered judgment for the employer. On appeal, the Eleventh Circuit disagreed with this aspect of the lower court's analysis and held that the plaintiff could proceed against the employer because same-sex harassment cases are actionable under Title VII. Fredette v. BVP Management Associates, 112 F. 3d 1503 (11th Cir. 1997).

If the Oncale and Fredette cases are not enough to persuade employers to take same-sex harassment claims as seriously as male-female harassment cases, consider this: in May, a federal court jury in Ocala, not a part of the state known for large verdicts, awarded a female plaintiff more than a million dollars in total damages (not including attorney's fees and costs) against the defendant employer for claims arising from her sexual harassment by another female, a supervisor for Belk-Lindsay Department Stores.

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