High court seems willing to allow same-sex harassment suits
December 3, 1997
Web posted at: 9:58 p.m. EST (0258 GMT)
WASHINGTON (CNN) -- Based on their questions during oral arguments Wednesday, the U.S. Supreme Court appears ready to rule that sexual harassment lawsuits can be brought in cases where both parties are the same sex.
Six of the court's nine justices indicated that they are inclined to overturn a lower court ruling which held that Title VI of the Civil Rights Act of 1964, under which sexual harassment suits are brought, doesn't cover same-sex sexual harassment.
"I don't see how we could possibly sustain the ruling," said Chief Justice William Rehnquist.
The Fifth U.S. Circuit Court of Appeals had said that Louisiana offshore oil rig worker Joseph Oncale could not sue the rig's owner, Sundowner Offshore Services, claiming harassment through sexually-oriented mistreatment by two supervisors and a co-worker.
Oncale claims he was sexually battered, touched and threatened with rape by the men. The defendants denied the harassment claim, characterizing their conduct as hazing and locker-room horseplay.
A final ruling isn't expected for several months.
Gay rights groups were closely watching the case, though there was no indication in court papers that any of the parties involved in this case is gay.
A ruling in favor of the company would leave people who believe they were harassed by someone of the same gender without a federal legal remedy.
The term "harassment" does not appear in the text of Title VII, but the Supreme Court ruled in 1986 that sexual harassment amounts to discrimination under that law if it creates a "hostile environment" in the workplace. Subsequent rulings have more clearly defined the legal criteria for what constitutes a hostile environment.
But Sundowner's lawyer, Harry Reasoner, argued Wednesday that Congress never intended to have the 1964 law extend to "relationships between people of the same sex" or to "federalize the regulation of conduct between men and men."
However, the argument that distinctions should be made in harassment cases based on the genders of the alleged victim and perpetrator was apparently lost on most of the justices.
"A Jew could discriminate against a Jew, an African-American against an African-American, an Italian against and Italian," said Justice Stephen Breyer. So why isn't man discriminating against man possible, he asked.
While comments of the justices indicated that most of them would vote to allow Oncale's suit to proceed, he may still have a hard time actually proving that he suffered discrimination in the all-male environment of an oil rig.
Justice Souter explains to Oncale's attorney what he has to prove
"Your burden is to prove that individual defendants would not have treated women the same way as men and (that) the employer would not have condoned it with women in the way it was condoned with men," Justice David Souter warned Oncale's attorney.
Justice Ruth Bader Ginsburg sounded the same theme, asking "how can we know how these gross people would have treated women?"
Ginsburg said that the behavior Oncale allegedly suffered could have simply been "a disgusting way to show they didn't like him," unrelated to his sex.
Edwin Kneedler, a lawyer for the Clinton administration, which interceded on Oncale's behalf, was asked whether an employer would be guilty of discrimination if he patted every single employee -- male or female -- on the buttocks each day.
Kneedler conceded that such an "equal-opportunity harasser" might not be violating federal law.
Correspondent Charles Bierbauer contributed to this report.