The latest word from our highest court: same-sex harassment is alive--and illegal.

It was October, 1991. In Washington DC, Anita Hill was testifying at a Senate hearing that she had been harassed while working under the charge of Clarence Thomas--a nominee for Supreme Court justice and former head of the Equal Employment Opportunity Commission. Out in the Gulf of Mexico, Joseph Oncale was experiencing workplace woes of his own.

A few months earlier, he was hired as a roustabout by Sundowner Offshore Services (SOS). But marooned on an offshore oil rig, his excitement about the new job soon paled. The eight-man crew included two supervisors--a crane operator named John Lyons, and Danny Pippen, a driller. The two men shot leers and jeers at Oncale. Then one day late in October, as the crew was transferring from one platform to another, Pippen grabbed and held Oncale while Lyons rubbed his penis on Oncale's head, threatening to rape him. The next morning, the two repeated the assault, assisted by Brandon Johnson, who worked on the rig as a floor hand. Later that day, as Oncale was showering, Lyons and Pippen sexually assaulted him with a bar of soap.

Oncale reported the attacks to the two people he thought might help--first, the SOS's safety compliance clerk, who shrugged off the complaint, noting: "Those two pick on me all the time, too." Oncale then informed another SOS official on the rig, who neither investigated nor intervened. And when Lyons learned that Oncale had told others about the assaults, he redoubled his threats to continue them.

"If I Didn't Leave, I Would Be Raped"

SOS demurred that the attacks were mere horseplay.

Oncale sued, alleging that the behavior was sexual harassment--a form of sex discrimination on the job prohibited by Title VII of the federal Civil Rights Act. But both the Louisiana district court and the court on appeal held that Title VII simply does not protect against same-sex harassment.

A Mixed Bag From Other Courts

A Wisconsin court recently concluded that boys will be boys in ruling that a male co-worker did not mean what he said in making repeated requests for oral sex--and that the requests did not add up to sexual harassment. The court may have been swayed by the facts that the oral banter between the two Coca-Cola bottling plant workers seemed reciprocal--and that one of their exchanges ended with a parking lot brawl in which they were armed with a baseball bat and tire jack. Still, the court's bottom line was that taunts and jeers at work, man to man, are not sexual harassment since they are not directed toward one another because of gender. The court used the example that when one man tells another to kiss his ass, "it has nothing to do with sex." (Johnson v. Hondo, Inc, 125 F. 3d 408 (1997))

~ A Tennessee court recently reached an opposite conclusion, finding that a male Goodwill Industry worker's lewd and obscene remarks to a male co-worker were illegal sexual harassment. In that case, the court made much of the fact that the harasser was gay and his remarks were allegedly prompted by sexual attraction. The harassed employee at Goodwill, the court reasoned, "had to put up with abuse and harassment that women there did not have to endure." (Yeary v. Goodwill Industries, 107 F. 3d 443 (1997))

Other courts, most consistently in California, Massachusetts and Minnesota, have ruled that taunts and assaults in the workplace are illegal sexual harassment, regardless of the sexual orientations of the harassed and the harasser. Interestingly, conclusions in these states may be bolstered by their strong state anti-discrimination laws which protect against discrimination based on sexual orientation. Nearly a third of the states have similar laws.

Looking for Supreme Guidance

In a brief to the Court, Oncale argued that the behavior he endured at SOS was textbook harassment: sexual in nature, offensive, unwelcome--and so must be prohibited on the job. SOS countered that Title VII was passed to provide the fairer sex with a remedy for historical discrimination on the job, so does not bar one man from harassing another. It raised worries that using Title VII to prohibit same sex harassment would risk creating a grand General Civility Code for the American workplace.

~ After mulling over the case for seven months, the U.S. Supreme Court held that sexual harassment between members of the same sex can be illegal. It pooh-poohed SOS's civility code concerns, pointing out that the law prohibits abusive workplace discrimination because of sex, not "conduct tinged with offensive sexual connotations." And it bolstered its opinion with an earthy sports metaphor emphasizing that context is everything: "A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field," the Court opined, "even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office." (Oncale v. Sundowner Services, Inc., 118 S. Ct. 998 (1998))

The Coming Out Fallout This case was closely watched by gay and lesbian rights groups--12 of which joined to file a brief with the Supreme Court in support of Oncale. The groups point out that gays and lesbians are often vulnerable targets of same-sex harassers on the job. The Boston-based Gay & Lesbian Advocates & Defenders, for example, reports that about three-quarters of its hotline complaints about employment matters concern same-sex harassment. Gay and lesbian workers who choose to complain to stop the harassment often face the Catch-22 of having the private fact of their sexual orientation being made public. Ironically, Oncale, who identifies himself as heterosexual, did not endeavor to become an icon for gay rights. "He started out living a very closed existence, not having much contact with gay people," his lawyer told The Advocate last year. "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."