Case Study:
Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998)
Employee sued for sexual harassment under Title VII after being harassed by his co-workers. For the first time, the U.S. Supreme Court dealt with the question of whether there can be a sexual harassment claim under Title VII if the harassers and the harassee are the same gender. The Court determined that Title VII’s exclusion of discrimination on the basis of affinity orientation did not prevent a cause of action for sexual harassment under Title VII even when the harasser and harassee are both the same gender.
Scalia, J.
This case presents the question whether workplace harassment can violate Title VII’s prohibition against “discriminat[ion]. . .because of. . .sex,” when the harasser and the harassed employee are of the same sex. Oncale was working for Sundowner Offshore Services on a Chevron U.S.A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority. On several occasions, Oncale was forcibly subjected to sexrelated, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. Oncale’s complaints to supervisory personnel produced no remedial action; in fact, the company’s Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippin “picked [on] him all the time too,” and called him a name suggesting homosexuality. Oncale eventually quit—asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.” When asked at his deposition why he left Sundowner, Oncale stated “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.” The district court held that “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.” The Fifth Circuit affirmed. Title VII of the Civil Rights Act of 1964 not only covers “terms” and “conditions” in the narrow contractual sense, but “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Title VII’s prohibition of discrimination “because of . . . gender” protects men as well as women, and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.” We hold today that nothing in Title VII necessarily bars a claim of discrimination “because of . . . gender” merely because the plaintiff and the defendant are of the same sex. Courts have had little trouble with that principle in cases where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a “hostile environment” sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-gender sexual harassment claims are never cognizable under Title VII. Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser’s gender, sexual orientation, or motivations. We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . gender” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Respondents contend that recognizing liability for same-gender harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-gender than for oppositegender harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discriminat[ion] . . . because of . . . gender.” We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. “The critical issue, Title VII’s text indicates, is whether members of one gender are exposed to disadvantageous terms or conditions of employment to which members of the other gender are not exposed.” Courts and juries have found the inference of discrimination easy to draw in most male–female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same gender. The same chain of inference would be available to a plaintiff alleging same-gender harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of gender. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such gender-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-gender harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-gender workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discriminat[ion] . . . because of . . . gender.” And there is another requirement that prevents Title VII from expanding into a general civility code: The statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same gender and of the opposite gender. The prohibition of harassment on the basis of gender requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive— is beyond Title VII’s purview.” We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory “conditions of employment.” We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” In same-gender (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same gender, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive. In light of our holding, the case is REVERSED and REMANDED.
Q1. Do you understand why the Court allowed Oncale to prevail here, despite the fact that the sexual harassment was between males? Explain.
Q2. What about the idea of men “roughhousing” and otherwise interacting with each other in ways that may cause claims to arise? As the employer, what would you do to lessen liability exposure?
Q3. As an employer, how would you be able to distinguish between activity that is directed at an employee because he or she is gay or lesbian, which is not protected by Title VII, and activity that is not based on affinity orientation, which is protected by Title VII? Explain.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.