Title Vii and Same-sex Sexual Harassment After Oncale-uncertainty Lingers

Publication year2003
32 Colo.Law. 87
Colorado Lawyer

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]

Specialty Law Columns
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

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

Since Oncale was decided in 1998...

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