Court Takes Same-Sex Abuse Case Justices Will Decide If Taunts Are Harassment Or Horseplay

The Supreme Court, accepting the case of a Louisiana roustabout who said he was taunted and harassed by other men on an offshore oil rig, agreed Monday to decide if federal law protects Americans from sexual harassment by members of the same sex.

The issue of “same-sex harassment” is the latest frontier of workplace anti-discrimination law and courts are divided over whether the same rules apply when the harasser and the victim are of the same gender.

To complicate matters further, two quite different kinds of cases have been heard in lower courts recently.

In the first, male or female employees claim to be the subject of sexual advances by supervisors who are gay or lesbian. Most courts have allowed those type of claims.

In the second situation, male workers, particularly in blue-collar jobs, complain they have been grabbed in the crotch or buttocks by male co-workers or called vulgar names.

This crude horseplay may be sexual in nature but typically the harassers are not gay and are not seeking sex.

The latter cases have been more controversial and the claims have been rejected by most federal courts.

Some lawyers have said the anti-bias law is being turned into “a good manners in the workplace” rule.

“If it is just the boys horsing around, I think it is very hard to argue Title VII (of the Civil Rights Act of 1964) was intended to cover that,” said Carla R. Walworth, an employment law expert in Stamford, Conn.

But others said that harassment of men by other men can create a hostile work environment.

“This so-called ‘mere horseplay’ is based on sex. It is done to men, usually not to women, and it’s often men who are weaker, smaller and less macho,” said Jon W. Davidson, a supervising attorney for the Lambda Legal Defense Fund in Los Angeles.

Joseph Oncale worked for several months on the platform but said that he was forced to quit because of repeated harassment, including lewd taunts in the shower. He said that he complained to a higher level supervisor but nothing was done.

After resigning, Oracle filed a suit against the company, Sundowner Offshore Services, saying he was sexually assaulted, battered, touched and threatened with rape.

In other matters, the court:

Suspensions without pay: Ruled in a Pennsylvania case that the Constitution does not require government-operated agencies to provide hearings to employees before suspending them without pay.

The 9-0 decision, which reversed an opinion of the 3rd U.S. Circuit Court of Appeals, was a victory for governments at all levels.

The court said a state has a significant interest in suspending employees charged with felonies, an interest that overrides the worker’s right to an uninterrupted paycheck.

The federal government, several states and numerous municipal groups had urged the high court to overturn the ruling that said the Constitution’s guarantee of due process should ensure public workers facing suspension without pay get notice and a hearing first.

False denials a crime? The court agreed to resolve another conflict among the lower federal courts, this time over whether a false denial of guilt can be prosecuted as a violation of the law against making false statements to federal officers.

Some lower courts have taken the view that a denial of guilt, even a false denial, is not a “statement” within the meaning of the false-statement law, which is usually known as Section 1001. This judicial doctrine, which the Justice Department has opposed, is known as the “exculpatory no” exception to Section 1001.

In this case, Brogan vs. United States, the 2nd U.S. Circuit Court of Appeals in New York refused to apply the exception.

Shipwreck law: The court agreed to hear a dispute between treasure hunters and California over an 1865 shipwreck. Its interpretation of the Abandoned Shipwreck Act of 1987 could have repercussions for treasure hunters around the country.

Deep Sea Research Inc. found the Brother Jonathan, a 220-foot paddle steamer, in California waters in 1993 after a 20-year search. According to legend, the ship had between $25 million and $50 million in gold and other artifacts when it sank.

The treasure hunters purchased the rights to the ship from two insurance companies but were challenged by California officials who claimed the wreck was abandoned and, therefore, state property.