Workplace Articles By BCC
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Harassment or Horseplay?
The same cases heard in different courts have also produced contradictory rulings. Two notable examples demonstrate this trend which, according to more recent cases, show that same-gender sexual harassment is sometimes actionable under Title VII. In Quick v. Donaldson Company [10], heard in August, 1995, Phil Quick, a muffler plant employee, claimed he was the victim of "bagging," intentional grabbing and squeezing of testicles, by at least twelve different coworkers. The court concluded that since bagging was not an uncommon practice and that many coworkers had also been subjected to the same behavior, the incidents were not discriminatory or sexually harassing under the meaning of Title VII.
On appeal, the Eighth Circuit reached a different conclusion in mid-1996, when it determined the behavior to constitute a form of gender discrimination because women do not have testicles. In the Court's ruling, the sexual orientation of the allegedly straight perpetrators was not considered to be a critical factor.
The seriousness of same-gender sexual harassment is reflected in the U.S. Supreme Court's recognition of it as a legitimate form. In March, 1998, in a unanimous vote, the court reached a ruling which has enormous importance for the workplace. In Oncale v. Sundowner Offshore Services [11], the nation's highest court reversed a federal appeals court decision which had ruled that the federal law never applies to same-gender sexual harassment. An excerpt from the Supreme Court's opinion, written by Justice Antonin Scalia, states that "we see no justification in the statutory language or precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII."
Joseph Oncale's suit is based on his four-month experience as a worker on an oil rig in the Gulf of Mexico. Oncale, a heterosexual, claims he was subjected to sexual assault, battery, touching, and threats of rape by another coworker as well as two superiors, one of whom was Oncale's direct supervisor. When no action was taken after twice reporting the situation to his employer's highest-ranking representative on the job site, Oncale quit, fearing the harassment would escalate to rape. The named defendants characterized their conduct as "hazing" or "locker-room horseplay," concluding that no illegal harassment occurred, an opinion affirmed by the lower courts.
The Supreme Court's review of the case and subsequent ruling has set an important precedent in evaluating cases in which the conduct occurs between members of the same gender. The court record states "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-sex (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."
Beyond its direct impact on same-gender sexual harassment cases in general, the Supreme Court's ruling has significant implications for gay and lesbian recipients of this form of harassment. Despite the current lack, at the federal level, of legal prohibition against discrimination and harassment based on actual or perceived sexual orientation, the Oncale decision creates a precedent for potential protection against such discrimination where it would simultaneously constitute a form of prohibited same-gender sexual harassment.