Oncale v. Sundowner Offshore Services, Inc.

Same-Sex Harassment Is Actionable

In a ground-breaking decision, the United States Supreme Court has decided that a male worker can recover for sex harassment perpetrated by his male supervisors and coworkers. Previously, Title VII of the Civil Rights Act of 1964 was thought to exclude these types of lawsuits unless the conduct complained of included homosexual advances. Now, even male-to-male hazing and horseplay may constitute sexual harassment for which an employer may be liable.

The case arose on an oil rig - a workplace that teemed with male-on-male hazing and horseplay. Joseph Oncale worked for four months aboard a Gulf of Mexico oil rig for Sundowner Offshore Services.

In his complaint, Mr. Oncale alleged that he was sexually assaulted, battered, touched and threatened with rape by his supervisors. He twice notified his employer of the situation, but no action was taken. He resigned due to fear that the conduct would escalate into rape.

The company’s response to Mr. Oncale’s claim was that the conduct that he complained of was just male "horseplay." The company also argued that the court should dismiss Mr. Oncale’s claim because Title VII does not prohibit male-on-male sexual harassment.

The Supreme Court stated that nothing bars Mr. Oncale's claim of discrimination "because of … sex" merely because the plaintiff and the defendant are of the same sex. The Court went on to state that it did not feel that its ruling in this case would transform Title VII into a general workplace civility code any more that its recognition of opposite-sex harassment does.

Title VII does not prevent all verbal or physical harassment in the workplace. A person who believes he has been harassed still must prove more than that the complained-of conduct was offensive. First, the plaintiff must show she was discriminated against because of her gender. In other words, a person of the opposite sex would not have been treated in such a manner. Second, the plaintiff must be able to show that the conduct was so severe or pervasive that it "altered" the employee’s terms or conditions of employment.

We suggest that employers consider doing the following:

• Make sure that your sex harassment policy includes prohibitions against any form of sexual hazing and/or horseplay.
• Train your employees and supervisors to know what sexual harassment is, and that it includes hazing and horseplay between employees.
• Take prompt remedial action in response to any complaint of harassment, including harassment between same-sex individuals.

The purpose of sexual harassment law is not to squelch all social interaction in the workplace or make the workplace a perfectly sterile or inoffensive place. Rather, the law is focused to prevent conduct that has the purpose or effect of making an employee feel discriminated against because of their gender.

In addition, the context and normal social morays of the workplace in which the conduct occurs are always taken into consideration. Therefore, while the Supreme Court’s decision in Oncale is likely to encourage more litigation, same-sex cases are probably going to be among the most difficult to prove.

Editor's Note: If you would like a copy of the Syllabus and/or the Opinion of the Court of Joseph Oncale, Petitioner v. Sundowner Offshore Services, Inc., please call Ellyn Schuster at (630) 377-1554 or send an e-mail request to elschuster@stch.w-p.com.

Posted 3/26/1998