Men v men in US courts

Satvinder Juss looks at a Supreme Court ruling which provides a precedent for same-sex harassment actions . In a decision with implications for workplace behaviour, the US Supreme Court has decided men or women taunted or abused by members of their own sex can sue for damages.

Like the US Sex Discrimination Act 1975, the federal law Title VII of the Civil Rights Act 1964 outlaws discrimination in the workplace on grounds of race, sex and religion, but it does not mention sexual harassment. The relative law was largely created by Supreme Court rulings over the past 12 years but has not been extended outside the male-female context. In recent years, same-sex cases have found their way into largely hostile lower courts; most actions were rejected as a matter of law or limited to situations where a heterosexual employee complains of harassment by a homosexual colleague.

In 1986, the Supreme Court held that harassment was a type of discrimination but as same-sex harassment complaints rose, the lower courts split on whether they were covered by law.

In Oncale v Sundower Offshore Services earlier this year, Justice Antonin Scalia declared that the laws requiring “discrimination because of sex” could occur when “behaviour so objectively offensive” creates a hostile environment for the victim. He said the “other critical issue… is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”. Although the law was intended to deter men from discriminating against women, Justice Scalia held that “the statutory prohibitions often go beyond the principle concerns of our legislators”.

The case concerned Joseph Oncale, a Louisiana roustabout on an off-shore oil rig in the Gulf of Mexico, who said he was subjected to sexual humiliation, assault and threats of rape by his male boss and co-workers.

He complained to his company, which did nothing, and quit, fearing the situation would escalate. Oncale's co-workers have denied the harassment claims and described their conduct as locker-room horseplay.

Few facts have been established in this ongoing action because Oncale's case was repeatedly thrown out of the lower courts. But given his all-male workplace he may be able to show he was singled out because he did not conform to the stereotype male oil rig roustabout.

Sexual harassment claims have doubled since 1991 to 16,000 a year, according to the US Equal Employment Opportunity Commission, and 12 per cent of these are from men. And a same-sex harassment claim has recently been allowed to proceed by the 7th US Circuit Court of Appeals in Chicago, in which a teenage boy said he was harassed by his all-male co-workers for not being masculine. The employers' national group, the Equal Employment Advisory Council, told the justices in Oncale that allowing same-sex cases would convert the law “into an unmanageably broad code of working behaviour”.

But Justice Scalia rejected claims that the law would become “a general civility code for the American workplace” because “that risk is no greater for same-sex than for opposite-sex harassment”. He said “common sense and an appropriate sensitivity to social context” were important in the courts' evaluation of each case. For example, a professional footballer would not be harassed if his coach “smacks him on the buttocks as he heads on to the field”, but the same behaviour could be seen as abusive by the coach's secretary (male or female) in the office.

Like the judicial development of earlier male-female harassment cases, the court has established the broader principle but left it to the lower courts to sort out the law's finer details as they handle individual cases. There is a need for clarification. Although gay rights groups welcomed the decision in Oncale because it adhered to a standard for all sexual harassment cases, future workplace behaviour could become more complex. For example, does crude locker-room horseplay represent harassment? And is one male co-worker harassed if another reads Playboy in front of him?

Employees must be re-educated about same- sex harassment, especially in blue-collar settings where locker-room humour is rife. If not, employers should not be surprised if a sacked employee adds a charge of sexual harassment to his complaints.