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Employees Have Protection for "Same-Sex" Harassment under Federal Law

April 1, 1998

The United States Supreme Court, in a case named Oncale v. Sundowner Offshore Services, Inc., recently ruled that the federal law prohibiting sexual harassment applies to situations where a harasser and a harassed employee are of the same sex. The court found that harassing comments of a sexual nature made by a male supervisor to a male employee gave the employee the right to sue because the law grants protection to all employees who are treated differently because of their sex, not just to those who have been discriminated against by a member of the opposite gender.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's race, color, religion, sex or national origin." The prohibition of sex discrimination has long been interpreted to make sexual harassment unlawful.

Oncale turned on whether or not an instance where both parties involved -- the harasser and the victim -- were of the same sex qualified as discrimination under Title VII, and therefore, whether or not an action could be brought against either an individual who allegedly harassed a co-worker of the same sex, or a company that allowed such behavior to occur.

In Oncale, a male worker on an off-shore oil platform was "forcibly subjected to sex-related, humiliating actions against him" by two male supervisors. The same supervisors also physically assaulted the employee in a sexual manner and one threatened him with rape. The worker resigned stating that he felt that if he remained on the job he would be raped or forced to have sex. He subsequently filed a complaint in a Federal District Court claiming that he was discriminated against in his employment because of his sex. The District Court dismissed the case stating that Title VII does not apply to harassment between two males. The worker appealed to the Supreme Court.

The Supreme Court ruled that "nothing in Title VII necessarily bars a claim of discrimination 'because . . . of sex' merely because the plaintiff and defendant . . . are the same sex." In other words, an employee who is subjected to offensive sexual conduct may maintain a claim for sexual harrassment regardless of his or her gender or that of the harrasser.

Employers should be aware that this case increases the possible workplace scenarios that could lead to litigation and should consider it in their day to day interactions with co-workers and subordinates. Employers should also communicate to Managers, in connection with training about all forms of harassment, that any complaints of same-sex harassment should be treated as seriously as complaints about other forms of harassment.