Title Vii and Same-sex Sexual Harassment After Oncale-uncertainty Lingers
Publication year | 2003 |
Pages | 87 |
2003, June, Pg. 87. Title VII and Same-Sex Sexual Harassment After Oncale-Uncertainty Lingers
Vol. 32, No. 6, Pg. 87
The Colorado Lawyer
June 2003
Vol. 32, No. 6 [Page 87]
June 2003
Vol. 32, No. 6 [Page 87]
Specialty Law Columns
Labor and Employment Review
Title VII and Same-Sex Sexual Harassment After Oncale - Uncertainty Lingers
by Karla J. Pierce
Labor and Employment Review
Title VII and Same-Sex Sexual Harassment After Oncale - Uncertainty Lingers
by Karla J. Pierce
This column is sponsored by the CBA Labor Law Forum Committee
to present current issues and topics of interest to
attorneys, judges, and legal and judicial administrators on
all aspects of labor and employment law in Colorado
Column Editor
John M. Husband of Holland & Hart LLP in Denver - (303)
295-8228
About The Author
This month's article was written by Karla J. Pierce,
Denver, an assistant city attorney for the City and County of
Denver in the Employment Law Practice Group - (720) 913-3109,
karla.pierce@ci.denver.co.us.
This article discusses the developing law dealing with
same-sex harassment claims, first recognized by the U.S.
Supreme Court in the landmark decision, Oncale v. Sundowner
Offshore Services, Inc.
In a significant Title VII case1 decided in 1998, Oncale v.
Sundowner Offshore Services, Inc.,2 the U.S. Supreme Court
recognized for the first time that a sexual harassment claim
may be maintained under certain circumstances when the victim
and perpetrator are of the same sex. In its unanimous
decision, the Court resolved a split of authority among
various federal and state courts by holding that Title
VII's prohibition of discrimination "because of . .
. sex" is not limited to the typical hostile work
environment case where a male employee makes unwanted sexual
advances toward a female employee in the workplace.
This article briefly discusses Title VII sexual harassment
and the Oncale case and addresses the interesting manner in
which various courts have since applied or distinguished
Oncale in hostile work environment same-sex harassment cases
with differing facts. Such cases sometimes focus on the
sexual orientation of the perpetrator and other times focus
primarily on the conduct itself.3
Sexual Harassment
As a Form of Sex
Discrimination
As a Form of Sex
Discrimination
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer "to discriminate against any individual
with respect to his [or her] compensation, terms, conditions,
or privileges of employment, because of such individual's
race, color, religion, sex, or national origin."4
Although Title VII does not explicitly mention sexual
harassment, courts have long recognized sexual harassment as
a form of sex discrimination (also referred to as gender
discrimination).
Two types of sexual harassment are recognized by the courts:
(1) "quid pro quo" sexual harassment, which occurs
when certain benefits of employment are conditioned, either
expressly or impliedly, on submission to sexual demands or
favors; and (2) "hostile work environment" sexual
harassment, which occurs when an employee is subjected to
sexual conduct that "has the purpose or effect of
unreasonably interfering with an individual's work
performance or creating an unwelcome, intimidating, hostile,
or offensive working environment."5
Notably, Title VII does not prohibit discrimination based on
sexual orientation.6 In fact, repeated efforts to enact
legislation that would prohibit such discrimination so far
have failed.7
The Oncale Case
Joseph Oncale was one of eight male employees working for
Sundowner Offshore Services on an oil platform in the Gulf of
Mexico. Oncale filed a complaint against Sundowner and three
male crew members in a U.S. district court in Louisiana,
alleging sex discrimination, in violation of Title VII.
Oncale alleged that on several occasions, the three crew
members had variously subjected him to humiliating,
sex-related acts in a forcible manner; threatened him with
rape; and physically assaulted him in a sexual manner.8
Oncale eventually quit his job after his complaints to
supervisory personnel were brushed aside.9
The district court granted summary judgment in favor of the
defendants, in reliance on Garcia v. Elf Atochem N. Am.10
That decision by the Fifth Circuit Court of Appeals barred
all same-sex sexual harassment claims.11 Oncale appealed, and
the Fifth Circuit Court affirmed, holding that Garcia was
binding precedent on the issue.12 The U.S. Supreme Court
thereafter granted Oncale's petition for writ of
certiorari.
The Supreme Court noted that courts previously had recognized
causes of action for sex discrimination under Title VII where
a plaintiff had been passed over for a job or promotion by a
member of the same sex.13 However, where the issue arose in
the context of a hostile work environment claim, the state
and federal courts had "taken a bewildering variety of
stances."14 As examples, the Court cited:
the Fifth Circuit Court's approach that all same-sex
sexual harassment claims are barred by Title VII;15
Fourth Circuit Court decisions holding that such claims are
actionable only if the plaintiff proved that the harasser was
homosexual;16
the holding of the Seventh Circuit Court that all workplace
harassment that is sexual in content is actionable,
regardless of the harasser's sex, sexual orientation, or
motivation.17
The Oncale Court rejected outright the position of the Fifth
Circuit Court, which stated that same-sex harassment claims
are categorically excluded from coverage under Title VII. The
Supreme Court cautioned that it had never held that workplace
harassment, even between men and women, "is
automatically discrimination because of sex merely because
the words used have sexual content or connotations."18
The Court emphasized its holding in Harris v. Forklift
Systems, Inc.,19 which stated that "[t]he critical issue
. . . is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which
members of the other sex are not exposed."20
The Court also cautioned that harassing conduct does not have
to be motivated by sexual desire to constitute discrimination
on the basis of sex, as might be the case where the same-sex
harasser is homosexual. Instead, the harassment could be
motivated by general hostility to the presence of other
members of the same sex in the workplace.21 The Court
emphasized that a plaintiff must prove that the harassing
conduct "was not merely tinged with offensive sexual
connotations, but actually constituted 'discrimination .
. . because of . . . sex.'"22 (Emphasis and ellipses
in original.) Based on its conclusion that same-sex sexual
harassment is actionable under Title VII, the Oncale Court
reversed and remanded the case for further proceedings.23
Developing Law of
Same-Sex Sexual
Harassment Post-Oncale
Same-Sex Sexual
Harassment Post-Oncale
Since Oncale was decided in 1998...
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