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Title VII of the Civil Rights Act of 1964 makes it an unlawful discriminatory practice for an employer to discriminate against an employee because of (among other protected characteristics) “sex.” The term “sexual harassment” typically conjures up images of a male boss acting inappropriately towards a female subordinate. This is one, but not the only, type of sexual harassment prohibited by law.

In 1998, the U.S. Supreme Court held, in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), that same-sex sexual harassment is actionable under Title VII.

The Court, in an opinion authored by the late Justice Scalia, explained:

Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. …

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat [ion] … because of … sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

… The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.

The Court outlined three examples of “evidentiary routes” that a plaintiff in a same-sex harassment case may use to prove a violation of Title VII:

  1. The harasser is homosexual (and, therefore, presumably motivated by sexual desire);
  2. A victim is “harassed in such sex-specific and derogatory terms by [someone of the same gender] as to make it clear that the harasser is motivated by general hostility to the presence of [someone of the same gender] in the workplace”; or
  3. There is “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”

In the nearly 20 years since the Oncale case has been handed down, courts have had various opportunities to assess allegations of same-sex sexual harassment.

Categories: Articles, Employment Discrimination, Employment Law, Gender Discrimination, Hostile Work Environment, Same-Sex Sexual Harassment, Sexual Harassment

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