On November 7 or 8, Oncale was present when a new galleyhand complained to the Chevron company representative in charge of the Chevron platform about Pippen kissing that galleyhand and Lyons telling that galleyhand that Lyons "loved him" and wanted to "fuck him in his butt." During a safety meeting the next morning, the Chevron company representative told Lyons and Pippen "not to mess with the galleyhand anymore," explaining that the galleyhand was "new" and "green to the field" and that the galleyhand "didn't know how it was offshore." (1)
When Oncale v. Sundowner Offshore Services was decided in 1998, many people undoubtedly "didn't know how it was offshore." (2) Like the galleyhand's abuse described above, Joseph Oncale's harassment occurred while working "offshore" as a roustabout aboard Chevron USA's Ship Shoal 266-A and B drilling platforms with seven other men. (3) Between August and November 1991, Oncale was subjected to an escalating series of verbal threats by coworkers John Lyons, Danny Pippen, and Brandon Johnson. (4) On several occasions, these coworkers told Oncale, "[y]ou're going to give it to me," while at other times they described how they would eventually, in Oncale's words, "fuck me in my behind." (5) Oncale was then the victim of three physical attacks on October 25 and 26, 1991. (6) In the first attack, Oncale was forced onto his knees by Pippen as Lyons unzipped his own pants, removed his penis, and stuck it onto the back of Oncale's head. (7) The next day a similar incident occurred when Oneale was forced to his knees as Lyons placed his penis on Oncale's arm. (8) Later that night Lyons and Pippen attacked Oncale in the shower. (9) Pippen allegedly lifted Oncale off the ground as "John Lyons grab[bed] the bar of soap and rubbed it between the cheeks of my ass and t[old] me ... they are fixing to fuck me." (10) After Oncale complained to his superiors, Lyons taunted him by saying: "You told your daddy, huh? Well, it ain't going to do you no good because I'm going to fuck you anyway." (11)
Whereas Oncale's sexual harassment transpired literally offshore--"on the Outer Continental Shelf of the United States," as Oncale's brief to the Supreme Court recounts (12)--Title VII case law presents an itinerary of similarly offshore spaces. In Giddens v. Shell Oil Co., the backdrop was an oil refinery in Odessa, Texas, where Richard Giddens was harassed by coworkers Jack Tucci and Craig Harner. (13) On one occasion, Tucci rubbed his crotch through his pants as he stood in front of Giddens, then invited Giddens into his office to see "how hard it would get." (14) On another occasion, Tucci and Harner cornered Giddens in the men's room, removed their penises from their pants, and rubbed them on Giddens. (15) Tucci and Harner later attacked Giddens in the refinery control room by hoisting him into the air and holding him upside down while Harner fondled Giddens's genitals and inserted his finger into Giddens's rectum. (16) In McWilliams v. Fairfax County Board of Supervisors, the scene was an all-male county mechanics yard in Fairfax, Virginia, where Mark McWilliams's coworkers--known collectively as "the lube boys"--tied McWilliams's hands together, blindfolded him, and forced him to his knees as one man repeatedly inserted his finger into McWilliams's mouth to simulate fellatio. (17) In Melnychenko v. 84 Lumber Co., the site was a building materials supply store in West Springfield, Massachusetts, where Leonid Melnychenko was repeatedly harassed by his coworker Richard Raab, who exposed himself, fondled Melnychenko's buttocks, asked Melnychenko for a "blow job," mimicked anal intercourse while standing behind Melnychenko, and told others that Melnychenko had performed fellatio on him. (18) In Cummings v. Koehnen, the setting was a trucking company in Rosemount, Minnesota, where Richard Cummings's supervisor would daily ask Cummings, "how about sucking my little dick and mak[ing] it a big dick." (19) On another occasion, Cummings's supervisor approached Cummings from behind and rocked his hips in a simulation of anal sex as he whispered to Cummings, "Here, let me tell you how a real man takes it." (20) Later the same supervisor asked Cummings to "bend over so I can do you in the ass." (21)
Oil platforms and refineries, mechanics yards, building supply stores, trucking companies: what binds these otherwise distinct spaces is the quality of being "offshore." Some of these workplaces are located literally offshore in geographically isolated settings like oil-platforms, while most are only metaphorically offshore in the sense of being culturally or institutionally estranged from the broader currents of social and sexual norms. It is also perhaps no coincidence that the majority of these workplaces are either exclusively or predominantly male, populated by men of similar racial, economic, and social backgrounds. (22) In fact, even on this preliminary level, we encounter one of the primary contradictions that structures offshore activity. On the one hand, these workplaces recall a fiercely homogeneous workplace culture--typically white, male, working-class--that is almost anachronistic today. These workplaces are therefore insular enough to evolve their own informal norms and hierarchies without apology to unrepresented races, classes, and genders: there is no need to be politically correct offshore. But, on the other hand, alongside the homophobia, racism, and sexism that might be expected, these involuted workplaces also cultivate overtly sexualized practices between male workers that would be branded deviant and perverse by mainstream society. Although frequently dismissed as "horseplay," "rough-housing," or "locker-room antics," such terms cannot hide the actual severity, aggression, and sexuality evident in cases such as Giddens, McWilliams, and Oncale. The result is, quite unexpectedly, a paradoxical expression of familiar masculine hierarchies through an explicitly sexual lexicon. Even as these deeply gendered, aggressive assertions of sexual power inevitably maintain a rejection of outright "homosexuality"--they are replete with simulations and invocations of anal intercourse, fellatio, and rape that, in the same gesture, mimic and disavow those practices--they nonetheless acknowledge that masculinity might be made, as well as unmade, through an encounter with traumatizing homoerotic abuse. In fact, part of the potency of these acts derives from their deliberate perversity. Rejecting the norms of the "onshore" world, these harassers enact a deviant, because desiring, masculinity--asking their victims for a "blow job" or inviting them to see "how hard it would get"--whose power to stigmatize comes from a manhood already hardened to, and perhaps also by, abuse. In the words of Richard Cummings's supervisor, a "real man" can "do you in the ass" only because he knows himself "how a real man takes it."
Some men, however, have not taken it very well. Since the early 1980s, an increasing number of men have brought same-sex sexual harassment claims under Title VII of the Civil Rights Act of 1964. (23) Originally, both courts and feminist legal scholars experienced some difficulty accommodating offshore activity in their theories of sexual harassment. Courts, for their part, rejected same-sex sexual harassment claims for a variety of reasons. Some courts reasoned that Title VII was historically intended to protect a "discrete and vulnerable group" against discrimination by the majority. (24) Hence, a successful plaintiff would need to demonstrate that an "anti-male environment" existed in the workplace. (25) Other courts concluded that sexual harassment is principally unwelcome sexual advances, so the harasser's sexual orientation, not the victim's gender, is determinative. (26) Even after the Supreme Court recognized same-sex sexual harassment claims in Oncale, it offered little guidance on how a plaintiff could prove such claims.
Feminist legal scholarship has been positively reinvigorated by same-sex sexual harassment cases. Such cases prompted feminists to return to first principles and rethink the basis of sexual harassment as such. Originally, in the early theories of radical feminists such as Catharine MacKinnon, sexual harassment represented only the most undiluted form of the sex inequality pervading society. (27) However, it was not readily apparent what significance, if any, same-sex sexual harassment might have. Consequently, in the late 1990s, same-sex sexual harassment pushed feminist legal scholars to recognize that, rather than establishing the unilateral power of men over women, sexual harassment policed the gender roles of both sexes. According to scholars Katherine Franke, Vicki Schultz, and Kathryn Abrams, men who are perceived as gay, effeminate, or sexually inexperienced become victims of sexual harassment as punishment for nonconformity. (28) Women are caught in an even more dire predicament because they are victimized both for fulfilling gender stereotypes and for deviating from them. (29) Building on these accounts, courts have more recently agreed to extend the sexual stereotyping claim from Price Waterhouse to include male same-sex victims. (30) Accordingly, over the intervening decade, relatively little new theoretical work has appeared as a practical and theoretical consensus formed that sees gender norms and sex stereotyping as the proper frameworks through which to approach sexual harassment. (31)
Excluded from this consensus are Joseph Oncale and other victims of offshore activity. For, with a few notable exceptions, neither courts nor feminist scholars would find Joseph Oncale to be the victim of sexual harassment. For many courts, all the sexualized language and eroticized acts in the world do not alter the fact that these are heterosexual men using sexual innuendo merely to tease a male coworker. Oncale's tormentors are not a group of "gay...