Same-sex harassment: gay men and lesbians being harassed in the workplace are about to have their day in court.
"In the beginning all my client ever wanted was his day in court," says Andre LaPlace, Oncale's attorney. "He started out living a very closed existence, not having much contact with gay people. But during this process he has learned what gay people face in terms of discrimination: If his case can help them out, he's happy about that."
In Oncale v. Sundowner Offshore Services Inc., the high court will decide whether same-sex sexual harassment violates Title VII of the 1964 Civil Rights Act, which prohibits on-the-job discrimination based on sex. Last year the court refused to hear three separate same-sex sexual harassment cases.
Under the act, to prove a sexual-harassment claim, a plaintiff must show that unwelcome verbal or physical conduct of a sexual nature occurred in the workplace and that it adversely affected the conditions of employment. While same-sex sexual harassment does not always involve gay men and lesbians, they are disproportionately affected by it. The federal Equal Employment Opportunity Commission ruled in 1981 that sexual harassment can occur between members of the same sex. But by declaring that same-sex sexual harassment is not covered by federal law, activists say, lower courts have created a de facto legal loophole that in some cases effectively grants same-sex sexual harassers immunity.
"As gay men and lesbians come out in the workplace, this is a growing problem," says Beatrice Dohrn, legal director of Lambda Legal Defense and Education Fund, a national gay and lesbian civil rights group based in New York City that filed an amicus curiae brief on Oncale's behalf. "Too many harassers have been allowed to argue that they can get away with harassing people of the same sex because they are not attracted to them--that it is simply horseplay. But whether you are gay or straight, male or female, sexual harassment should be against the law."
Even in the harsh world of sexual harassment, the allegations in the Oncale case are severe. According to a petition filed with the Supreme Court, Oncale's harassment began shortly after he was hired as a crew member on one of Sundowner's offshore oil rigs. Oncale's suit alleges that he was "sexually assaulted, battered, touched, and threatened with rape" by three male coworkers, two of whom had supervisory authority. In one incident a coworker is accused of grabbing Oncale from behind while another allegedly placed his penis on the back of Oncale's head. In another incident, in a shower stall, one coworker allegedly held Oncale while another inserted a bar of soap between his buttocks. As they held Oncale the men told him they were planning to "fuck [him] in the behind," Oncale said.
Fearing for his safety, Oncale quit and filed suit against the company. The Supreme Court's announcement that it would hear the case came after dismissals of the suit by a federal district court and the court of appeals for the fifth circuit, both located in New Orleans. Those courts held that federal law prohibiting sex discrimination does not apply to same-sex sexual harassment.
Sundowner's attorneys, who did not return telephone calls from The Advocate, argue in legal briefs that Congress never intended to give victims of same-sex sexual harassment the right to sue. "Same-gender harassment is inherently different from harassment because of sex," they said in briefs submitted to the high court.
Among sexual-harassment cases nationwide, same-sex sexual harassment remains relatively rare. But legal observers say it is becoming increasingly common. In the first six months of 1997 alone, says Mary Bonauto, civil rights director of the Boston-based Gay & Lesbian Advocates & Defenders, more than 200 gay men and lesbians called to complain about employment matters. One half to three quarters of the calls concerned same-sex sexual harassment.
Bonauto says the actual numbers are probably even higher. "We find that many men are not willing to complain about sexual harassment because they do not want to be labeled gay in the workplace," she says. "What we are talking about is just the tip of the iceberg."
Erik Richard, a 21-year-old resident of Portland, Me., is a case in point. While he was employed by the Susse Chalet Inn in 1994, a male coworker allegedly harassed him repeatedly. "He was a homophobic straight guy who, when we were alone, would say things to me like, `You want to suck my click, don't you?'" says Richard. Richard's supervisor at the time intervened to stop the harassment. But when the supervisor left the company, the harassment resumed, Richard says.
After one particularly harrowing incident in which Richard says he felt physically threatened, he left the hotel to seek assistance. When he returned he was notified that he had been fired. One year later the Maine Human Rights Commission, a state body, dismissed Richard's complaint against Susse Chalet on the grounds that same-sex sexual harassment is not covered under the law.
Today, Richard runs his own Web-page design firm. "For a long time after the harassment, I was afraid of venturing into the workplace," he says. "At least when I'm working for myself, nobody can harass me, and I can't be accused of it either."
In some cases, however, the expansion of same-sex sexual-harassment law could boomerang on openly gay people. In several cases gay men and lesbians themselves have been accused of same-sex sexual harassment on the basis of their sexual orientation alone. For instance, Bonauto handled a case in which a lesbian was accused by a female coworker of sexual "stalking" when she happened to follow the coworker into an office rest room.
"The very notion of coming out at work is considered inappropriate by some people," says Bonauto. "So gay people are at risk of being falsely charged with harassment just for being who they are. Some people see gay people as sexually predatory and interpret all their actions in that light."
To combat groundless claims, Bonauto can rely on a Massachusetts ordinance banning sexual-orientation discrimination, one of ten such laws in the country. But in states without legal protections, gay men and lesbians could once again end up without redress. "Even in the best-case scenario, the Supreme Court ruling will not protect gay people who are victims of nonsexual harassment," says Chai R. Feldblum, a professor at Georgetown University Law Center and one of the authors of the Employment Non-Discrimination Act, a federal bill that proposes to ban antigay discrimination in the workplace. "If a colleague says to me, `All you need is a good man,' it would not necessarily be covered under same-sex sexual-harassment law," she notes. "We need to expand the idea of harassment beyond the purely sexual."
Whatever the outcome of the Oncale case--which the Supreme Court will not decide until next year--the workplace is fast becoming the gay rights battleground of the future. "When a gay person is sexually harassed on the streets, you can't do anything but run or yell," says Katherine Franke, associate professor at Fordham University Law School in New York City, who has written extensively on the subject. "But workplaces are microcultures that are covered by a robust body of law. These are the places where we all learn pluralistic values of equality and respect and where gay men and lesbians at least have a fighting chance."
RELATED ARTICLE: From the docket
Cases involving same-sex sexual harassment have proliferated in recent years, with courts often reaching contradictory conclusions
Johnson v. Hondo Inc.
A male worker allegedly repeatedly threatened to force a male coworker to perform oral sex on him. The man who was threatened sued the company, contending it should have stopped the harassment. In August the court of appeals for the seventh circuit rejected the suit, explaining that obscene comments, "particularly when uttered by men speaking to other men," are "simply expressions of animosity or juvenile provocation."
Melnychenko v. 84 Lumber Co.
Three male employees filed a sexual-harassment suit against the company and their male supervisors, alleging that they had been fondled and asked to have sex with a manager. On one occasion an employee's head reportedly was forced to within one foot of a supervisor's exposed penis. In siding with the employees, the Massachusetts supreme judicial court ruled in February that same-sex sexual harassment is illegal under Massachusetts law, regardless of the sexual orientation of the victim.
Yeary v. Goodwill Industries--Knoxville Inc.
A male employee alleged that a male coworker made "lewd and obscene remarks" to him, including asking whether he had ever seen or had "12 inches." In February the court of appeals for the sixth circuit ruled that "when a male sexually propositions another male because of sexual attraction, there can be little question that the behavior is a form of harassment."
Hopkins v. Baltimore Gas and Electric Co.
A male supervisor allegedly positioned a magnifying glass over a male worker's crotch, gave him a congratulatory kiss at his wedding, and made numerous sexual comments over a seven-year period. In March 1996 the court of appeals for the fourth circuit affirmed a lower court's dismissal of the suit on the grounds that the plaintiff had failed to demonstrate a hostile work environment. The court split on whether same-sex sexual harassment is actionable under Title VII of the 1964 Civil Rights Act.
RELATED ARTICLE: Justice Clarence Thomas's defender is now a defendant
On the surface one little-known same-sex sexual-harassment complaint, filed in the District of Columbia's superior court in April, is little different from the hundreds filed across the country every year: The male owner of a communications firm is said to have sexually harassed a male employee over a two-year period. The harassment allegedly began with inappropriate questions about sex; before long the boss was accused of grabbing the employee's crotch and hopping into bed with him in hotel rooms during business trips the two took together. When he resisted, the employee says, he was dismissed.
What makes the case so unusual is that the defendant is conservative talk-show host Armstrong Williams, who is best known for his vigorous defense of Supreme Court justice Clarence Thomas against the charge that he sexually harassed Anita Hill. "Sexual harassment comes in all shapes and sizes," says Mickey Wheatley, a Washington, D.C., attorney who is representing the plaintiff, Stephen Gregory. "But when politics is involved, people stand up and take notice." Williams denies the charge, saying he fired Gregory for cause.
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|Title Annotation:||Special Report; US Supreme Court case; includes information about other same-sex sexual harassment cases and related articles|
|Publication:||The Advocate (The national gay & lesbian newsmagazine)|
|Date:||Nov 25, 1997|
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