The Supreme Court announced Monday that it will decide whether federal civil rights law protects a man who is subjected to sexual harassment on the job by another man.
The issue of “same-sex harassment” is the latest frontier of workplace anti-discrimination law, and courts are divided over whether the same rules apply when the harasser and the victim are of the same gender.
To complicate matters further, two quite different kinds of cases on the issue have been heard in lower courts recently.
In the first, male or female employees claim to be the subject of sexual advances by supervisors who are gay or lesbian. Most courts have said that those claims, if true, can be the basis for winning damages under the federal anti-discrimination law.
In the second situation, male workers, particularly in blue-collar jobs, complain that they have been grabbed in the crotch or buttocks by male co-workers or called vulgar names. This crude horseplay may be sexual in nature, but typically the harassers are not gay and are not seeking sex.
The latter cases have been more controversial and the claims have been rejected by most federal courts.
Some management lawyers have said that the anti-bias law is being turned into “a good manners in the workplace” rule. “If it is just the boys horsing around, I think it is very hard to argue Title VII [of the Civil Rights Act] was intended to cover that,” said Carla R. Walworth, an employment law expert in Stamford, Conn.
But others said harassment of men by other men can create a hostile work environment and should be made illegal.
“This so-called ‘mere horseplay’ is based on sex. It is done to men, usually not to women, and it’s often men who are weaker, smaller and less macho,” said Jon W. Davidson, a supervising attorney for the Lambda Legal Defense Fund in Los Angeles.
He noted that California courts have upheld claims of same-sex harassment under state law.
On Monday, the Supreme Court said that it would resolve the matter in federal law, agreeing to do so in a case of extremely crude horseplay that allegedly took place on an offshore oil drilling platform in Louisiana.
Joseph Oncale worked for several months on the platform but said he was forced to quit because of repeated harassment.
Oncale said that he complained to a higher-level supervisor but nothing was done to stop the harassment. After a shower incident, he quit. Later, he filed a suit against the company, Sundowner Offshore Services, for employment discrimination.
The Civil Rights Act of 1964 makes it illegal for employers “to discriminate against any individual . . . because of such individual’s race, color, religion, sex or national origin.” Since the 1980s, courts have agreed that severe sexual harassment on the job is a type of discrimination based on sex.
But a federal judge threw out Oncale’s claim before trial, and the U.S. 5th Circuit Court of Appeals agreed that his complaint, even if true, did not amount to a violation of the law.
His lawyers appealed and last month Clinton administration lawyers urged the court to hear the case (Oncale vs. Sundowner, 96-568).
“On its face, the [1964 law] against sex discrimination extends to both opposite-sex and same-sex discrimination, as long as the challenged conduct occurred ‘because of’ the victim’s sex,” the Justice Department said. For example, if a female supervisor denied promotions to females because she liked to work with men, that conduct would violate the law even though it could be considered “same-sex” discrimination.
Even if the court were to revive Oncale’s claim, the case would be sent back to a trial judge to decide whether the misbehavior he alleges “went beyond mere ‘horseplay’ to constitute severe and pervasive harassment because of sex,” the department said.
The court will hear the case in the fall and issue a ruling early next year.
In other actions, the court:
* Refused again to hear a challenge to the federal law that protects access to abortion clinics (Terry vs. Reno, 96-1425).
* Ruled that public employees who hold “positions of great public trust” can be immediately suspended without pay if they are accused of wrongdoing. The 9-0 ruling (Gilbert vs. Homar 96-651) upholds the suspension of a campus police officer in eastern Pennsylvania who was charged with a drug crime. A lower court said that he deserved a hearing first.
* Cleared the way for a convicted Illinois murderer to gather evidence that a crooked judge was biased in his case (Bracy vs. Gramley, 96-6133). Chicago Judge Thomas Maloney was convicted of taking bribes but not in the case of William Bracy, who was convicted in 1993. Bracy’s lawyers said they should be able to obtain evidence to show Maloney was biased against their client. Reversing a lower court, the justices agreed unanimously.