Different Genders Does Not Determine Sex Discrimination

After the court decisions of Bundy vs. Jackson and Meritor Savings Bank vs. Vinson, sexual harassment cases wound their way through the court system based on one gender harassing a different gender based on sex.

Sexual harassment law became centered on two different premises:

Quid Pro Quo (or this for that), meaning sexual favors would determine whether employees kept their jobs, got promoted, et cetera; or

Hostile Work Environment, when an employee feels uncomfortable or scared to be in his or her work space due to offensive behavior of a sexual nature, intimidation or abuse by a coworker or superior. Whether the environment meets the standard of a hostile work environment, usually is determined by the totality of the circumstances.

The law itself also continued on the premise that it took one gender against another gender for a cause of action to have merit, such as men sexually harassing women, or women sexually harassing men. That is until the case of Joseph Oncale vs. Sundowner Offshore Services Incorporated came along.

In October, 1991, Joseph Oncale was employed as a roustabout at Sundowner Offshore Service’s oil platform off the shores of Mexico. He was one of eight male employees on the platform. There were no female crew members on the platform.

According to court documents, “…on several occasions, Oncale was forcibly subjected to sex related, humiliating actions against him by [three crew members, Lyons, Pippen and Johnson] in the presence of the rest of the crew. [Pippen and Johnson] also physically assaulted Oncale in a sexual manner, and [Lyons] threatened him with rape…”

Oncale took his complaints to his supervisors and other superiors for the company, but got no relief. In fact, the company's safety compliance clerk told Oncale that Lyons and Pippen picked on him (the compliance clerk) all the time too, and called him a name suggesting homosexuality. Oncale eventually quit. He only asked that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." Later, 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."

Oncale filed a complaint of sexual harassment against Sundowner Services claiming the actions of his co-workers and that the failure of their superiors to knowingly stop the harassment was a classic case of sexual harassment hostile work environment.

The court held: "Mr. Oncale, a male, has no cause of action under [the law] for harassment by male co-workers."

Oncale appealed all the way up to the United States Supreme Court.

The Supreme Court found for Oncale. In its opinion delivered by Justice Antonin Scalia (a very conservative justice), the court found: “There is no justification in [the law of sexual harassment] language or the Court's precedents for a categorical rule barring a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform [the law] into a general civility code for the American workplace, since [the law] is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since 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 other words, sexual harassment discrimination will not be based on one gender against another, but on how a reasonable, prudent person (of any gender) would feel in a similar situation.

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