Is Same-Sex Harassment Illegal? High Court Weighs Whether Civil Rights Law Applies to Cases of Men Threatening Men
Robert Marquand, writer of The Christian Science Monitor, The Christian Science Monitor
Twice in the past decade the US Supreme Court has spelled out clearly that sexual harassment is a civil rights violation that Americans can sue over. Those landmark rulings, however, dealt with grievances between men and women.
What does the law say when the unwanted aggression is by members of the same sex? If a man is sexually bullied or threatened in the workplace by other men, for example, does that constitute harassment - as it would if a woman were abused?
That's the question posed before the justices yesterday as the Supreme Court heard its first-ever case dealing with "same-sex harassment." How the justices rule could have important ramifications for American businesses. Sexual harassment has become one of the most sensitive - and costly - workplace issues of the 1990s. Since 1991, when Anita Hill alleged Supreme Court nominee Clarence Thomas harassed her, the number of federal complaints filed annually has doubled. And legal costs are rising. Earlier this year, a Cleveland-based company paid a record $1.3 million to settle a suit filed by 17 women workers. The case now before the court deals with Joseph Oncale, who worked for $7 an hour as a roustabout on an oil rig off the shores of Louisiana. At various times on Oct. 25, 1991, Mr. Oncale says two fellow workers and one supervisor attacked him; pinned him down, touched him in a sexual way, threatened to rape him - and then repeated similar abuse again in the following days. Neither Oncale nor his attackers is homosexual. Oncale, unable to sleep at night during his week-long shifts on the rig, eventually quit. He sued his employer under Title VII of the 1964 Civil Rights Act, claiming sex-based discrimination. Questions by the justices yesterday, led many reporters present to conclude that the high court might unanimously decided to allow same-sex harassment claims. Chief Justice William Rehnquist pointed out that if Oncale could not sue, then "any man who discriminates against a man or a women is immune, and that seems difficult to justify." Yesterday's oral argument was only the third case the court has heard on sexual harassment. So far, the court, even its conservative members, have strongly supported laws upholding the right to sue. In 1986, the court agreed that "unwelcome advances" were grounds for harassment. In 1993, that legal ground was expanded to allow suit by victims who claimed "a pervasive atmosphere" or "climate" of sexual abuse. Indeed, this area of law is so new that the high court could this term create a new legal standard that makes sexual misconduct a federal violation, regardless of gender. Currently, the lower courts are in disarray on the question, with some saying there is no claim for "same sex" harassment, others saying there is a claim if one party is homosexual, and still others allowing "same sex" suits to proceed. "This case is similar to those classic cases 20 years ago, when the courts first recognized that harassment was an actionable offense," says David Gregory of St. John's University School of Law in New York. "The larger question is, how do you deal with sexualized violence - something that touches adults, minors, men, women, gays, and lesbians? …