Supreme Court Hears Same-Sex Harassment Case Justices Likely To Rule For Worker Who Says Co-Workers Abused Him

For an hour Wednesday, the Supreme Court talked about sex - specifically, whether federal civil rights law covers on-the-job sexual harassment by men against men and by women against women.

And after the oral arguments had ended, the justices appeared ready to rule that sexual harassment in the workplace sometimes can be illegal when the alleged harasser and the victim are of the same sex.

Beyond that, though, the justices appeared deeply divided.

They expressed divergent views on such questions as how to prove same-sex harassment, how to tell the difference between male horseplay and harassment, whether there ever could be gender discrimination in an all-male or all-female workplace and whether a bisexual employee who equally harasses both sexes violates the law.

In the case at hand, however, the high court is being asked to decide only whether a lower court was wrong in ruling that federal law simply doesn’t cover same-sex harassment.

“I don’t see how we could possibly sustain the ruling,” Chief Justice William Rehnquist remarked.

At least five other justices expressed a similar distaste for a flat ban on same-sex harassment suits.

One of them, Stephen Breyer, said, “A Jew could discriminate against a Jew, an African American against an African American, an Italian against an Italian. Why isn’t it possible that a homosexual … could discriminate?”

The court’s ruling, expected by July, could have a major impact on businesses which face an increasing number of such suits. But if the justices allow same-sex suits, lower courts would still have to grapple with what exactly constitutes harassment and how the law should be enforced.

At the core of the dispute is Title VII of the Civil Rights Act of 1964, which says that it is “an unlawful employment practice to discriminate against any individual because of sex.”

Although the law doesn’t mention sexual harassment, the Supreme Court ruled more than 10 years ago that unwelcome sexual conduct or remarks, if severe or pervasive enough to create a hostile work environment, violate federal anti-discrimination law.

The justices, however, have never specifically applied that principle to single-gender situations.

The issue came to the court in an appeal by Joseph Oncale, who said he was repeatedly subjected to sexual touching and even threatened with rape by three male co-workers on an oil-drilling rig off the Louisiana coast in 1991. On one occasion, Oncale said, two of the men forced a bar of soap into his rear in a shower stall.

Oncale, who said his complaints to supervisors were ignored, filed suit against the three men and the employer, Sundowner Offshore Services. The defendants, who are heterosexuals, denied any harassment and portrayed the incidents as hazing or horseplay. A federal appeals court, based in New Orleans, threw out the suit, saying that the Civil Rights Act doesn’t apply to single-sex harassment.

Wednesday, Justice Ginsburg, who as a lawyer was a pioneering advocate for women’s rights, suggested that it would be an unfair double standard to require that employers take women’s harassment complaints seriously - but permit employers to brush off male complaints with the remark, “boys will be boys.”