SAME-SEX HARASSMENT ILLEGAL ON JOB, SUPREME COURT SAYS.

Byline: Aaron Epstein Knight Ridder Newspapers

Sexual harassment on the job may be illegal even when men torment men and women abuse women, the Supreme Court ruled unanimously Wednesday.

Until now, it had been unclear whether federal civil-rights law, which has barred on-the-job sexual harassment between men and women since 1986, also applies to workers of the same gender.

But the justices, acting in a case of crude sexual behavior in an all-male crew on an offshore oil rig, made it possible for alleged victims in a growing number of same-sex harassment cases to win remedies in federal courts throughout the United States.

The Civil Rights Act of 1964 bars discrimination because of sex, and ``we see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims,'' Justice Antonin Scalia wrote for all nine justices.

Congress might not have had male-on-male sexual harassment in mind when it wrote the act, Scalia observed, but laws ``often go beyond the principal evil to cover reasonably comparable evils.''

The decision was of special interest to gay-rights groups and businesspeople, who have perceived an upsurge in same-sex cases in recent years.

Since 1991, sexual-harassment complaints of all types have increased 131 percent and the number of complaints filed by men has tripled, according to the U.S. Equal Employment Opportunity Commission. But the agency does not distinguish between male-female and same-sex cases.

``The decision puts employers on notice that they're going to have to protect against all sexual harassment, not just opposite-sex harassment,'' said Mark Hager, who teaches employment law at American University in Washington. ``Smart employers have probably done that anyway, but it's not easy to prevent malicious, intentional conduct of employees,'' Hager said.

Same-sex harassment lawsuits have been filed against homosexuals and heterosexuals, usually men. Often heterosexual men have been accused of teasing, taunting and grabbing males they believed to be gay.

In Los Angeles, the ruling came as good news to Kenneth Barbara, who will be back in court this month in a case where he claims he was sexually harassed by another male mechanic in the Metropolitan Transportation Authority's Sun Valley division.

His attorney, Bennett Rolfe of Camarillo, said the ruling helps extend necessary protections. ``We think it bodes extremely well for Mr. Barbara's case,'' Rolfe said.

Barbara said another male employee groped his genital area despite Barbara's protest. His complaints were ignored by the MTA, he claimed.

A spokeswoman for the MTA declined to comment on the case Wednesday, since the matter is in litigation.

In a brief filed with the court, the MTA argues that the incidents were not actual invitations to engage in sexual activity. ``This is simply two immature males engaged in a verbal fight,'' states the brief filed by attorney Rick Brouwer.

The trial is scheduled to begin March 31.

In 1994, California's Supreme Court ruled that sexual harassment of a person of the same sex is illegal. That case involved a male screenwriter who said he was harassed by his male boss at Silver Pictures.

Gay-rights organizations nationally lauded the ruling. ``This is a resounding statement that sexual harassment laws mean what they say, and lower courts cannot artificially carve exceptions,'' said Kevin Cathcart, executive director of the Lambda Legal Defense Fund, a major defender of the rights of homosexuals.

Lawyers who defend major corporations in employment discrimination suits said the decision would have little effect in most workplaces.

``Every major employer already has policies, procedures and training in sexual harassment - including same-sex harassment,'' said Allen Fagin, a New York lawyer representing several large corporations.

The court's ruling had been anticipated since December, when the justices indicated during oral arguments that a lower court had erred by barring same-sex harassment suits.

During the arguments, the justices appeared split over such questions as how to tell the difference between male horseplay and harassment, whether gender discrimination is possible in an all-male or all-female workplace, and whether the law would be violated by a bisexual employee who harasses both sexes equally.

Scalia did not resolve those questions, but he did make it clear that an alleged victim ``must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination . . . because of . . . sex.''

That means, he explained, that one sex must be exposed to worse conditions of employment than the other.

-- Daily News Staff Writer Amy Collins contributed to this story.