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U.S. Supreme Court Holds Title VII Prohibits Same-Sex Harassment

Oncale v. Sundowner Offshore Services, Inc.
98 Daily Journal D.A.R. 2100
(U.S. S.Ct., March 5, 1998)

In a brief, unanimous decision, the United States Supreme Court last week held that Title VII prohibits same-sex sexual harassment. As the Court explained, nothing in the language of the statute, nor in Supreme Court jurisprudence, bars such a conclusion -- as long as the harassment is based on or because of the victim's sex.


Highlighting what may be a significant difference between California law and federal law under the Americans With Disabilities Act, the Fifth District of the California Court of Appeal has held that California's Fair Employment & Housing Act does not require that a mental impairment be one that substantially limits a major life activity. Pensinger v. Bowsmith, Inc., 60 Cal. App. 4th 709 (1998) Thus, under this case, mental disabilities that are protected under FEHA are broader than under the ADA.

Just five weeks later, however, the Fourth District of the Court of Appeal in San Diego held to the contrary, finding that the Legislature intended FEHA's disability provisions to mirror the ADA. Muller v. Automobile Club of Southern California, 98 Daily Journal D.A.R. 1369 (February 9, 1998). We are monitoring these cases and expect that the California Supreme Court will review one or both decisions to resolve the split.

California courts decided several years ago that our Fair Employment and Housing Act prohibits same-sex harassment. But federal appellate court decisions have varied on this issue: the Fifth Circuit, for example, held that Title VII never authorizes same-sex harassment claims, while the Fourth Circuit ruled that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Still other courts, including the Seventh Circuit, have held that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations.

The Supreme Court settled the debate, holding that the language of Title VII prohibiting harassment "because of . . . sex" protects men as well as women, and provides no justification for a categorical rule excluding same-sex harassment claims from coverage of Title VII. The Court also briefly reviewed Supreme Court precedent pertaining to racial harassment, which provides that a member of any race can bring a claim for racial harassment under Title VII, even if the alleged harasser is of the same race as the victim.

The Court dismissed the concern of employers that recognizing liability for same-sex harassment will transform Title VII into a general code of civility for the American workplace, noting that "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination . . . because of . . . sex." The critical analysis, according to the Court, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the opposite sex are not exposed.

Further, the Court noted that the prohibition of harassment forbids "only behavior so objectively offense as to alter the 'conditions' of the victim's employment. "This aspect of the holding is consistent with earlier federal cases that held Title VII is designed not to rid the workplace of all boorish and vulgar behavior, but only to redress discrimination -- i.e., harassment based on or because of sex.

The Court reiterated the federal "reasonable person" standard as the measure for determining whether workplace incidents constitute "harassment." In doing so, the Court noted that common sense, and an appropriate sensitivity to the context in which the behavior is experienced by its target, "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 did not address the merits of Oncale's complaint, and left open the issue of what specific instances of same-sex harassment will invoke liability. That issue will undoubtably be fleshed out in appellate and circuit court decisions to come.

In light of Oncale, employers should review and, if necessary, revise their harassment policies to ensure they are written in gender neutral terms. When confronted with harassment complaints, whether based on gender or any other status, employers should evaluate the complaints based on an understanding of all the circumstances of the workplace.

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