Defining sexual harassment.

Recently, a federal district court judge remarked to me that almost half her civil caseload seemed to be sexual harassment suits. Although statistically this estimate seems exaggerated, there is no doubt that federal courts have seen a marked increase in recent years in these cases.

It is, therefore, not surprising that the U.S. Supreme Court has granted review this term in four cases dealing with sexual harassment. The first to be decided is Oncale v. Sundowner Offshore Services, Inc., which considered the issue of whether same-sex sexual harassment is actionable under Title VII of the Civil Rights Act of 1964.(1)

In a very short opinion, the Court held that suits may be brought for same-sex sexual harassment. The Court said that the plaintiff would have to prove that the harassment was "because of sex." The Court, however, did nothing to define that requirement and thus gave virtually no guidance to lower courts in handling these cases.

Title VII of the Civil Rights Act provides, in part, that "it shall be an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."(2) The Supreme Court has held that this "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment."(3) Thus, although sexual harassment is not expressly prohibited in federal employment discrimination statutes, the Court has held that it is actionable as a form of sex discrimination under Title VII.

Sexual harassment can take a quid pro quo form, where an employer threatens adverse employment actions unless the employee consents to sex or where an employer promises employment benefits in exchange for a sexual relationship. Sexual harassment also can be found based on a hostile working environment. The Supreme Court explained, "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."(4)

Oncale involves the latter. Unfortunately, the Supreme Court does not describe the case facts in its opinion. Justice Antonin Scalia, writing for the Court, said that "the precise details are irrelevant to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally."(5) But, to understand the nature of the claim and to evaluate the ultimate legal issue, whether the conduct constitutes sexual harassment, require knowledge of the facts.(6)

Joseph Oncale was employed on an offshore oil-drilling rig by Sundowner Offshore Services, Inc., between August and November 1991. He worked a shift of seven days on duty at the offshore rig and seven days off duty. While on duty he lived in the crew's quarters on the rig. Oncale said that three male employees, John Lyons, Danny Pippen, and Brandon Johnson, subjected him to sexual assaults and sexual abuse.

Specifically, Oncale alleged that on one occasion, Pippen and Johnson grabbed and held him while Lyons placed his penis on Oncale's neck. Lyons said that he was going to rape Oncale. Oncale alleged that similar conduct occurred later, as Johnson held him and Lyons again told Oncale that he would have to acquiesce to Lyons's sexual advances.

In addition, Oncale alleged that while he was taking a shower in the crew's quarters, Lyons and Pippen entered the shower stall. Pippen restrained Oncale while Lyons forced a bar of soap into Oncale's anus.

Oncale said the two men said that they wanted to have sex with him and that they would continue their conduct so long as Oncale worked on the rig. Oncale complained to supervisors who refused to take any action. Oncale quit and sued under Title VII.

The district court dismissed Oncale's claim based on an earlier Fifth Circuit ruling that had held that same-sex sexual harassment is not actionable under Title VII.(7) The Fifth Circuit affirmed. In light of a conflict among the circuits as to whether Title VII encompasses same-sex sexual harassment,(8) the Supreme Court granted certiorari.

The Supreme Court reversed the Fifth Circuit and held that same-sex sexual harassment is actionable under Title VII. The Court began by noting that "Title VII's prohibition of discrimination `because of ... sex' protects men as well as women."(9) Nothing in the language or history of Title VII of the Civil Rights Act makes a cause of action depend on the gender or race of the victim or the violator.

Thus, Scalia concluded, "If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars 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."(10)

The Court emphasized, however, that Title VII creates liability only where the harassment is "because of sex." The employer had stated in its argument to the Court that allowing same-sex harassment claims would transform Title VII into a general prohibition of harassment on the job and make it a "civility code for the American workplace."(11)

Scalia expressly rejected this argument and said "that risk is no greater for same-sex than for opposite-sex 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 `discrimination... because of... sex.'"(12) Scalia said that sexual content is not enough to prove sexual harassment; it must be alleged and proven that the conduct was because of sex.

Finally, Scalia said that "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 sex and of the opposite sex."(13) He explained that "the prohibition of harassment on the basis of sex 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."(14)

Ultimately, the issue is to be judged from the perspective of a "reasonable person" in the plaintiff's position based on all the circumstances.(15) The case was remanded by the Court, and it will be for the lower court to decide whether Oncale has alleged discrimination because of sex.

The only other opinion was a one-sentence concurring opinion by Justice Clarence Thomas. He simply declared, "I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination `because of... sex.'"(16)

What does `because of sex' mean?

The Supreme Court decided the only question that it had to resolve in Oncale. It reversed the Fifth Circuit's holding that same-sex sexual harassment never is actionable under Title VII.

Yet, the Court left open the difficult issue and one that will continue to plague lower courts until resolved by the Supreme Court. When is harassment "because of sex"? The harassment of Oncale was obviously sexual in nature. Yet, the Court was explicit that this is not sufficient to prove that harassment was because of sex. What else must be proven?

If the behavior is based on sexual attraction, there seems little difficulty in showing that the conduct was because of sex. But what of a situation, like Oncale's, where the behavior was based on hostility? Federal law does not generally prohibit harassment on the job, and Scalia's opinion stressed that it was not interpreting Title VII to do so. The limit is the requirement that it be shown that the hostile conduct was "because of sex," but the Court did nothing to explain what is adequate to meet this burden.

A restrictive approach would be to require that a person prove that he or she was treated differently from those of the opposite gender. In other words, establishing that an action was "because of sex" would necessitate evidence that those of the opposite gender were not subjected to the same behavior. In the context of a situation like Oncale's, where it is an all-male workplace, it would be virtually impossible to show that conduct was because of sex.

An alternative approach would be to find that discrimination is based on sex if it is based on gender-related conduct. For example, if it could be shown that a man was targeted for harassment because of perceived effeminate behavior, then it could be said that the offending conduct was because of sex. This definition seems preferable because it reflects the range of circumstances in which harassment can be said to be based on gender.

In Oncale, the Court made it clear that harassment need not be based on sexual attraction in order to be actionable; sexual harassment based on hostility, such as in the facts of Oncale, also is grounds for recovery. If a person is harassed because of gender-related conduct, it seems appropriate to conclude that the harassment was because of sex.

Pending cases

As of this writing, three other sexual harassment cases remain before the Court. None is likely to address the question of when harassment is "because of sex," but all raise other crucial questions in sexual harassment litigation.

In Jansen v. Packaging Corp. of America, the Court is considering whether a claim of quid pro quo sexual harassment may be stated under Title VII where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on compensation, terms, or conditions of employment.(17) In other words, must a victim of sexual harassment show adverse employment actions to state a cause of action?

In Doe v. Lago Vista Independent School District, the Court is examining the proper standard of liability of a school district under Title IX of the Education Amendments of 1972 for a teacher's sexual harassment of a student.(18) The issue is whether a school district is vicariously liable for a teacher's sexual harassment of a student.

In Faragher v. City of Boca Raton, the Court is considering an employer's liability for hostile-environment sexual harassment allegedly committed by supervisors.(19) The question presented focuses on the circumstances in which any employer is liable because of the acts of its supervisors.

Anita Hill's charges of sexual harassment by Clarence Thomas, then-nominee for U.S. Supreme Court justice, focused public attention on this serious problem. The current allegations against President Clinton, including Paula Jones's recently dismissed suit against him for sexual harassment, make the topic one that is under constant discussion. Yet, amid all this attention, the legal requirements for a sexual harassment suit rarely are examined in the public arena.

The challenge for the Supreme Court is to give guidance to lower courts and to employers as to what constitutes impermissible sexual harassment. Unfortunately, Oncale provides little such guidance, as it poses but does not answer the question of when is harassment based on sex.

Notes

(1.) No. 96-568, 1998 U.S. LEXIS 1599 (Mar. 4, 1998).

(2.) 42 U.S.C. [sections] 2000e-2(a)(1) (1994).

(3.) Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

(4.) Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

(5.) 1998 U.S. LEXIS 1599, at *3.

(6.) The facts are described in the court of appeals decision, found at 83 F.3d 118 (5th Cir. 1996), rev'd, remanded, 1998 U.S. LEXIS 1599.

(7.) Garcia v. Elf Atochem N. Am., 28 F.3d 446 (5th Cir. 1994).

(8.) See, e.g., Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997) (concluding that same-sex sexual harassment is actionable under Title VII).

(9.) 1998 U.S. LEXIS 1599, at *6 (citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983)).

(10.) Id. at *7.

(11.) ld. at *9.

(12.) Id.

(13.) Id. at *10-11.

(14.) Id. at *11.

(15.) Id.

(16.) Id. at *12-13 (Thomas, J., concurring).

(17.) 23 F.3d 490 (7th Cir. 1997) (per curiam), cert. granted sub nom. Burlington Indus. v. Ellerth, 118 S. Ct. 876 (1998).

(18.) 106 F.3d 1223 (5th Cir. 1997), cert. granted, 118 S. Ct. 595 (1997).

(19.) 111 F.3d 1530 (11th Cir. 1997), cert. granted, 118 S. Ct. 438 (1997).

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles.