Same-Sex Harassment Illegal, Says High Court


The Supreme Court expanded federal civil rights law Wednesday to prohibit same-sex harassment, raising the legal standard for behavior in the American workplace.

The ruling revives a damage claim filed by a Louisiana man who quit his job on an offshore drilling platform after he was ridiculed, grabbed and threatened repeatedly with rape in a shower by two male supervisors.

A lower court threw out his case before trial and said that this sort of harassment, no matter how offensive, was not covered by the law.


Now, men who are victims of severe on-the-job sexual harassment from other men can seek damages in federal court. So too can women who are subjected to repeated, unwelcome advances from other women.

In a short but powerful opinion that spoke for a unanimous court, Justice Antonin Scalia set forth new guidelines on this emerging area of law.

There is no “general civility code” in the law, he said. Simple “horseplay” or “roughhousing” among men is not illegal, nor are “flirtations” between men and women. The antidiscrimination law does not even bar some types of “verbal or physical harassment” among workers.

However, when “harassing conduct” of a sexual nature is so “severely hostile or abusive” that workers cannot do their jobs, it violates the law. And it does not matter whether the offenders are the same or opposite sex, he said.

Winning plaintiffs can obtain as much as $300,000 in damages from employers.

Scalia’s opinion drew praise across the spectrum, from civil rights lawyers and gay-rights advocates as well as management experts. Some said that it will lead to more lawsuits, but others termed the decision predictable and not a bold departure.

Many lower courts, including California state courts, already had upheld claims of same-sex harassment. Wednesday’s ruling was more significant in spelling out a single national standard, they said.


“The court affirmed what we have always maintained: that sexual harassment is about power, not sex, and that the sexual orientations of the people involved are totally irrelevant,” said Elizabeth Birch of the Human Rights Campaign, the nation’s largest gay rights group.

“No one should suffer sexual harassment as a condition of going to work, regardless of whether you are male or female, gay or straight,” said Steven R. Shapiro, the American Civil Liberties Union legal director. “This opinion makes clear there is one set of rules.”

William Kilberg, a management law specialist here, said that he has found “no disagreement among plaintiffs lawyers and management counsel on this one.” No company should allow its employees to suffer the gross humiliation and torment allegedly suffered by Joseph Oncale, the Louisiana man, he said.

A slightly built man, Oncale went to work on the oil-drilling platform in the Gulf of Mexico in August 1991. Several workers, including his supervisor, made repeated vulgar comments to him and grabbed him in the shower. Though he complained to management officials, nothing was done. Four months later, he quit.

A U.S. appeals court in New Orleans tossed out his lawsuit on the grounds that same-sex harassment was not covered under the landmark Civil Rights Act of 1964, which first made it illegal nationwide for employers to discriminate against workers because of their race, religion, sex or national origin.

Writing for all of his colleagues on the Supreme Court, Scalia disagreed. “Nothing in [this law] necessarily bars a claim of discrimination ‘because of sex’ merely because the plaintiff and the defendant are of the same sex.”

In his seven-page opinion, Scalia announced four important conclusions.

First, the gender of the victim is irrelevant. A conservative and a literalist, Scalia says laws should be interpreted by their simple words, not by their spirit or the wishes of those who passed them.

Obviously, Congress was not concerned about same-sex harassment in 1964 when it passed the law but that does not matter, Scalia said. The words of the law forbid “discrimination because of sex” and this must cover both men and women, he said.

While civil rights lawyers praised Scalia’s literal approach Wednesday, he has been criticized for using the same approach in the affirmative action area. In the past, Scalia has insisted that civil rights law, by barring race discrimination, protects workers who are white just as much as those who are black.

Second, the illegal harassment need not be “motivated by sexual desire.”

Some courts have said that same-sex harassment is barred only in the classic case of a gay supervisor making advances to a male underling.

Disagreeing, Scalia noted that harassment sometimes reflects a “general hostility” to another sex, not sexual attraction. For example, some men do not like working with women. If they harass them, their conduct is illegal, he said, even though sexual desire is not involved. The same holds true for same-sex harassment, he said.

Third, plaintiffs must prove that they suffered discriminatory or “disadvantageous” treatment on the job. His opinion gives relatively little guidance in this area, and it did not spell out, for example, when male horseplay would cross the line to become illegal harassment. However, a plaintiff must prove the conduct was so “offensive as to alter the conditions of the victim’s employment.”

Finally, he has said, “common sense” and “social context” count.

The pro football coach who regularly smacks a player on the buttocks is not engaging in illegal harassment, he said. However, if he routinely does the same to his secretary, whether male or female, he may be in trouble, he said.

By applying common sense, judges and juries should be able “to distinguish between simple teasing or roughhousing among members of the same sex and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive,” Scalia concluded.

The ruling (Oncale vs. Sundowner Offshore Services, 96-568) is the first of four decisions coming this term on sexual harassment.

Later this month, the justices will hear arguments in two cases. One tests whether employers can be held liable for harassment by a low-level supervisor. The second will determine whether a school system can be held liable for a teacher’s illicit affair with a young student.

Next month, the court will hear arguments on whether a male supervisor’s threats to a female employee can result in a damage verdict, even if the threats were not carried out.

Rulings on all three cases will be handed down by July.


What the Ruling Means

The decision provides important new guidelines for resolving sexual harassment claims in the workplace.


On-the-job torment can be illegal sexual harassment even when the offender and victim are the same sex.


All circumstances must be considered, Associated Justice Antonin Scalla said, and gave the example of a football coach smacking the buttocks of a player heading onto the field as acceptable, while doing the same thing to a secretary--male or female--would not be.

“Common sense, and an appropriate sensitivity to social context, will enable courts . . . to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person . . . would find severely hostile or abusive.

--Associate Justice Antonin Scalia