By Reibstein, Larry
Newsweek , Vol. 130, No. 23
It may be assault, but is it sexual harassment when the predator and victim are the same gender?
Joseph Oncale had been working for only a few weeks as a roustabout on an oil rig off the Gulf of Mexico when, he says, the trouble began. Traveling on a boat between platforms, two supervisors grabbed him, and one placed his penis on the back of Oncale's head and threatened further sexual assault. The assaults continued the next morning and night, Oneale says. As he was taking a shower, he recounts, one boss pinned him while the other inserted a bar of soap between his buttocks and vulgarly threatened anal sex. Oncale, then 21, complained to company officials, but no action was taken. A month later, tired and scared of the continuing verbal abuse, he quit. His employer, Sundowner Offshore Services Inc., and the workers have denied the allegations.
Is this a clear-cut case of sexual discrimination? Sureif Oncale were a woman. But he isn't, and that's the rub. Oncale's federal sex-discrimination suit against Sundowner was dismissed by the Fifth Circuit Court of Appeals in New Orleans. Oncale was treated outrageously, the court agreed, but it concluded that under federal law there's no such thing as a man sexually discriminating against another man.
This week the U.S. Supreme Court will hear Oncale's appeal, and its decision in this legal thicket could decide an issue that's starting to reverberate in the workplace. Same-sex-discrimination suits--even between heterosexuals--are becoming more common in this era of heightened sensitivity to workplace harassment. Employers worry that expanding the notion of sex discrimination will produce a barrage of snits from men complaining about everyday boorish behavior, like pats on the buttocks or dirty jokes. Oncale, now 27 and the father of two children, contends that the law makes no distinction between male and female workers. "Harassment is blind," he says. "If you're being harassed, you're being harassed."
The courts don't see the issue that simply. Federal appeals courts are badly split over how broadly to interpret Title VII of the Civil Rights Act, the landmark law that prohibits employers from discriminating against someone "because of his or her sex, race and religion. In 1986 the Supreme Court fatuously expanded the law's definition of discrimination to include sexual harassment that creates a "hostile environment." But with same-sex suits the question is "How do you distinguish sexual harassment from other forms of harassment," like bullying, says Erwin Chemerinsky, a law professor at the University of Southern California. …