JUNE 20, 1997 GAY PEOPLE'S CHRONICLE 1.
SPEAK OUT
Harassment ruling will show if Romer has teeth
by Shelley McConnell
The eyes of the gay and lesbian community will again be focused on the highest court in the land as a same-sex sexual harassment case heads to the U.S. Supreme Court next term.
A finding that sexual harassment indeed exists when the victim and the defendant are of the same sex would mark the second nationwide legal victory for gays and lesbians in less than three years.
The case involves a male oil rig worker, Joseph Oncale, who claims that male supervisors assaulted him verbally and physically, to the point of threatening rape, while they were working on an offshore drilling platform for Sundowner Offshore Services in 1991.
After reporting the incidents twice to a higher level company official, Oncale quit. The company took no action on his behalf and denies any such incidents occurred. The case was dismissed by both the Louisiana District Court and the Fifth Circuit Court of Appeals. The courts found that no cause of action existed due to the fact that the plaintiff and the defendants are of the same sex.
Sexual harassment in the workplace is illegal under federal law through Title VII of the Civil Rights Act of 1964. Derived from the act's ban on sex discrimination, sexual harassment consists of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Such conduct creates a "hostile work environment." When this environment "unreasonably interferes" with an individual's work, sexual harassment has taken place. Conflicting decisions in the lower courts, despite clarification from the Equal Employment Opportunity Commission (EEOC), make this issue ripe for Supreme Court review.
The EEOC recognized the validity of same sex harassment claims over fifteen years ago, yet few cases have found their way to the courtroom. Those that have have generated opinions on all sides of the issue, from allowing the case to proceed to dismissing it outright. Courts in Ohio and Virginia have upheld the cause of action-but only when the victim is a straight man and the aggressor is gay.
A ruling in favor of same-sex sexual harassment claims would protect both male and female employees, something seemingly mandated by Title VII. Yet the only factor distinguishing Oncale's case from a "typical" sexual harassment claim is the fact that he is a man.
A similarly situated woman would have relatively little difficulty getting the matter heard. Oncale is being discriminated against because of his sex, one of the basic prohibitions of Title VII and the very origin of antisexual harassment law.
Realistically, however, plaintiffs like Oncale are also being discriminated against because of something we are all too familiar with-judicial homophobia. To acknowledge same-sex sexual harassment claims in the true spirit of equal opportunity law would allow cases to proceed regardless of the victim's sex and sexual orientation.
A workplace infused with inappropriate and unwelcome sexual advances, remarks, and literature can-and does-exist regardless of who is creating that hostile environment. Of course, few members of the judiciary or the general public would have a hard time holding a gay or lesbian defendant liable in such a situation. The problem is in acknowledging the gay or lesbian plaintiff.
In addition to the gay (or straight) person's actual sexual advances toward someone of the same sex, the hostile environment precedent to date would seemingly apply to anti-
gay jokes, slurs, and other inappropriate behavior directed at gay and lesbian employees. The standard would remain the same: If the hostile environment unreasonably interferes with the individual's work, sexual harassment has occurred.
Some courts, as mentioned above, have tried to avoid this scenario by essentially carving out an exception against gay plaintiffs. If presented to the high court, that type of argument could result in our discovery of how much bite last year's Romer v. Evans decision really has. To find a rationale for such an exception based on anything but animosity would be judicial gymnastics at its best.
The possibility of a favorable ruling here, coupled with Congress' recent reintroduction of the Employment Non-Discrimination Act (ENDA), gives the gay and lesbian community a lot to watch for in the coming months. Are we on the verge of equal employment practices regardless of sexual orientation?
Only time and the Supreme Court and Congress-will tell.
Shelley McConnell earned her juris doctorate in May, 1996 from the University of Akron School of Law. She is a member of Akron NOW and Stonewall Akron.
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