Joseph Oncale v. Sundowner Offshore
Services, Inc.: Redefining Workplace
Sexual Harassment to Include SameSex Sexual Harassment and the Effect
on Employers
I. INTRODUCTION
Jamie and Chris work for an investing firm in Boston, Massachusetts.
Jamie is a supervisor and Chris holds an entry-level position. Jamie has
continually harassed Chris in the form of unwanted physical touching and
sexually explicit remarks about Chris and his body. As a result of the harassment, Chris has trouble concentrating at work, is nervous around Jamie,
and is experiencing severe emotional distress.
If in this scenario, Jamie is a woman and Chris is a man, no one would
disagree that Chris has a cause of action against Jamie for sexual harassment. However, what would happen if both Jamie and Chris were men?
Would one still have an actionable claim against the other? What would
the courts decide?
The U.S. Supreme Court resolved this issue in Oncale v. Sundowner
Offshore Services, Inc.1 Joseph Oncale felt threatened by the conduct of
his fellow workers at his place of employment. 2 The behavior was so offensive to Oncale that he was forced to quit his job. 3 Oncale felt that he
was being sexually harassed by his male co-workers and decided to file
suit under Title VII of the Civil Rights Act of 1964 (Title VII). 4 The issue
confronting the Supreme Court was whether a male could bring a Title VII
action for sexual harassment against members of the same sex.5 In its decision, the Court unanimously held that same-sex sexual harassment is
actionable6 under Title VII of the Civil Rights Act of 1964 (Title VII). 7
Until this decision, the circuits were split as to whether same-sex sexual
523 U.S. 75 (1998).
See id. at 77.
See id.
See id.; see also 42 U.S.C. § 2000e-2(a)(1) (1994).
See id.
See id. at 82.
42 U.S.C. § 2000e-2(a)(1) (1994) (making it unlawful for any employer to
“refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual” in regards to employment to their race, color, religion, sex, or n ational origin).
1.
2.
3.
4.
5.
6.
7.
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harassment constituted a cause of action under Title VII. 8
This Comment examines how the Oncale decision has impacted the field
of sexual harassment in the workplace. More importantly, it examines
what issues and duties have evolved for the employer in the wake of this
decision. Part II.A provides an overview of Title VII and its sexualharassment prohibition along with some legislative history. 9 Part II.B examines Title VII sexual harassment holdings prior to the Supreme Court’s
ruling in Oncale.10 Part II.C examines Meritor Savings Bank v. Vinson,11
in which the Supreme Court recognized sexual harassment as a form of
sexual discrimination for the first time. 12 Part II.D defines and differentiates between quid pro quo sexual harassment and hostile work environment sexual harassment.13 Part III will recount the facts of Oncale and
trace its history from the decision of the Fifth Circuit Court of Appeals to
the reasoning behind the recent ruling of the Supreme Court. 14 Part IV.A
explores the reaction to Oncale and its impact on employers and their
management,15 beginning with an explanation of what lawyers should do
to protect against liability of same-sex sexual harassment claims and how
they should proceed,16 and then presenting a new insurance policy established to alleviate the financial burden employers face when confronted
with a sexual harassment claim.17 Part IV.B examines the cases of, and
reaction to, Burlington Industries, Inc. v. Ellerth18 and Faragher v. City of
Boca Raton,19 which along with Oncale have redefined sexual harassment
in the workplace.20 Lastly, Part V presents the author’s conclusion and
final perspectives.21
8. See Garcia v. Elf Atochem North America, 28 F.3d 446, 452 (5th Cir. 1994)
(holding that harassment by a male supervisor against a male subordinate did not
state a claim under Title VII although the harassment admittedly had sexual ove rtones); see also Doe v. Belleville, 119 F.3d 563 (7th Cir. 1997) (concluding that
workplace harassment that is sexual in content is always actionable, regardless of
harasser’s sex, sexual orientations, or motivations).
9. See infra notes 22-28 and accompanying text.
10. See infra notes 29-55 and accompanying text.
11. 477 U.S. 57 (1986).
12. See infra notes 56-67 and accompanying text.
13. See infra notes 68-94 and accompanying text.
14. See infra notes 95-137 and accompanying text.
15. See infra notes 138-228 and accompanying text.
16. See infra notes 142-212 and accompanying text.
17. See infra notes 213-228 and accompanying text.
18. 524 U.S. 742 (1998).
19. 524 U.S. 775 (1998).
20. See infra notes 229-353 and accompanying text.
21. See infra Part V.
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II. BACKGROUND
A. Sexual Harassment Under Title VII
Title VII declares it unlawful for an employer “to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.”22 This statute allows for victims of such
discrimination to obtain equitable relief, compensatory damages, or
punitive damages.23 It also grants either party to a dispute the right to a
jury trial.24
The word “sex” was not originally included in the language of Title VII
and was instead a late addition in an effort to halt the passage of the bill. 25
This effort failed and the bill was passed with the inclusion of the word
“sex.”26 As a result, Congress did not have time to debate what would and
would not constitute sexual discrimination, leaving the courts with “little
legislative history to guide them in interpreting the congressional intent
behind prohibiting discrimination based on an individual’s sex.” 27 The
primary reason it passed, however, was that Congress agreed that if the
word “sex” were not included, a qualified woman might be denied a job
based on gender and have no recourse.28
B. Early Cases which Dealt with Sexual Harassment as a Cause of Action
Under Title VII
When the federal courts first encountered sexual harassment claims under Title VII they refused to recognize them. 29 The following are three
42 U.S.C. § 2000e-2(a)(1) (1994).
See 42 U.S.C. §§ 1981a(a)-(b) (1994).
See id. at § 1981a(c)(1) (1994).
See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 63-64 (1986). Congressman
Howard Smith was an opponent of Title VII and proposed the addition of the word
“sex” only two days before passage of the bill, believing that its addition would
have a significant enough affect as to stop the passage of the entire bill. See Melissa C. George, Because of Sex: Same-Sex Sexual Harassment Claims Under Title
VII of the Civil Rights Act of 1964, 22 LAW & PSYCHOL. REV. 251, 252 (1998).
26. See George, supra note 25, at 252 n.7.
27. Corey Taylor, Same-Sex Sexual Harassment in the Workplace Under Title
VII: The Legal Dilemma and the Tenth Circuit Solution, 46 KAN. L. REV. 305, 307
(1998).
28. See George, supra note 25, at 252.
29. See Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J.
1976). The district court in Tomkins refused to recognize a cause of action for
same-sex sexual harassment explaining:
22.
23.
24.
25.
The abuse of authority by supervisors of either sex for personal purposes
is an unhappy and recurrent feature of our social experience. Such co n-
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major reasons that earlier courts did not accept sexual harassment as cognizable under Title VII: (1) the courts felt that Title VII was not intended
to reach so far as to encompass sexual harassment actions; (2) there was a
general unwillingness to intrude into personal or private matters; and (3)
there was concern that recognizing such an action would result in an overabundance of litigation.30
In Tomkins v. Public Serv. Elec. & Gas Co.,31 the court held that Title
VII’s intent was designed to make employment opportunities equal for
women, and not to be a remedy for attacks based on sexual desire. 32 The
court rejected the sexual harassment claim by reasoning that “the sexual
advances were based on desire and not specifically on the gender of the
victim, [thus] they were beyond the reach of Title VII’s prohibitions
against sex discrimination.” 33 In Miller v. Bank of America34 and Corne v.
duct is frequently illegal under the penal statutes of the relevant jurisdiction. Such conduct might well give rise to a civil action in tort. It is
not, however, sex discrimination within the meaning of Title VII.
Id. at 556; see also Miller v. Bank of America, 418 F. Supp. 233 (N.D. Cal. 1976);
Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161 (D. Ariz. 1975).
30. See Katherine H. Flynn, Same-Sex Sexual Harassment: Sex, Gender and the
Definition of Sexual Harassment under Title VII, 13 GA. ST . U. L. REV. 1099, 1103
(1997).
31. 422 F. Supp. 553 (D.N.J. 1976). The plaintiff, Adrienne Tomkins, brought
an employment discrimination suit against her former employer, Public Service
Electric & Gas Co., and her former male supervisor. See id. at 555. Tomkins complained of sexual harassment by the supervisor and retaliation against her when she
protested his actions. See id. The court held sexual harassment and sexually motivated assault do not constitute sex discrimination under the discriminatory e mployment practice provisions of the Civil Rights Act of 1964. See id. at 556. The
court reasoned:
Title VII was enacted in order to remove those artificial barriers to full
employment which are based upon unjust and long-encrusted prejudice.
Its aim is to make careers open to talents irrespective of race or sex. It
is not intended to provide a federal tort remedy for what amounts to
physical attack motivated by sexual desire on the part of a supervisor
and which happened to occur in a corporate corridor rather than a back
alley. In this instance the supervisor was male and the employee was
female. But no immutable principle of psychology compels this alig nment of parties. The gender lines might as easily have been reversed, or
even not crossed at all.
Id.
32.
33.
34.
See Tomkins, 422 F. Supp. at 556.
Flynn, supra note 30, at 1103.
418 F. Supp. 233 (1976). The plaintiff, Margaret Miller, filed an action
based on alleged sex discrimination against her employer, Bank of America, for the
actions of a fellow employee. See id. at 234. The court held that Title VII of the
Civil Rights Act of 1964 was not intended to hold an employer liable for what is an
isolated and unauthorized sexual misconduct of one employee toward another. See
id. at 236. Although the court admitted the conduct of the supervisor (in promising
an employee a better job if she would be sexually cooperative and causing her di s-
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945
Bausch & Lomb, Inc.35 courts expressed the view that sexual harassment
did not belong in the courts because it was a personal matter that dealt with
a personal urge.36 Both courts held that because the employers did not
have policies approving of these sexual advances, the harassment was un-
missal when she refused) was contrary to the policy of the employer, it found the
employee failed to avail herself of services of employer’s personnel department
which had been established to investigate complaints of that nature and thus the
employer was not liable. See id. The court reasoned:
[I]t would not be difficult to foresee a federal challenge based on alleged
sex motivated considerations of the complainant’s superior in every case
of a lost promotion, transfer, demotion or dismissal. And who is to say
what degree of sexual cooperation would found a Title VII claim? It is
conceivable, under plaintiff’s theory, that f lirtations of the smallest order would give rise to liability. The attraction of males to females and
females to males is a natural sex phenomenon and it is probable that this
attraction plays at least a subtle part in most personnel decisions. Such
being the case, it would seem wise for the Courts to refrain from delving
into these matters . . . .
Id.
35. 390 F. Supp 161 (1975). The plaintiffs, Jane Corne and Geneva DeVane,
brought an action against their employer, Bausch & Lomb, Inc. and Leon Pr ice,
alleging violation of their civil rights. See id. The plaintiffs alleged that they were
repeatedly subjected to verbal and physical sexual advances from Price. See id. at
162. They also alleged that cooperation with Price’s illegal activities result ed in
favored employment, which constitutes discrimination by sex in violation of Title
VII. See id. The court held that even if the plaintiffs were subjected to sexual a dvances from their superior, and due to the advances the superior terminated their
employment, they cannot be granted relief where there was no employer policy
served by alleged conduct, no benefit to the employer resulted, and the conduct had
no relationship to the nature of the work. See id. The court reasoned that:
Nothing in the complaint alleges nor can it be construed that the
conduct complained of was company directed policy which deprived
women of employment opportunities. A reasonably intelligent reading
of the statute demonstrates it can only mean that an unlawful emplo yment practice must be discrimination on the part of the employer,
Bausch and Lomb. Further, there is nothing in the Act which could re asonably be construed to have it apply to ‘verbal and physical sexual a dvances’ by another employee, even though he be in a supervisory capacity where such complained of acts or conduct had no relationship to the
nature of the employment.
It would be ludicrous to hold that the sort of activity involved here
was contemplated by the Act because to do so would mean that if the
conduct complained of was directed equally to males there would be no
basis for suit. Also, an outgrowth of holding such activity to be actio nable under Title VII would be a potential federal lawsuit every time an
employee made amorous or sexually oriented advances toward another.
The only sure way an employer could avoid such charges would be to
have employees who were asexual.
Id. at 163-64.
36. See Miller, 418 F. Supp. at 236; see also Corne, 390 F. Supp. at 163.
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related to the victim’s employment.37 Lastly, the federal courts reasoned
that these claims should be disallowed in order to curb the possibility of
numerous actions that would flood the courts. 38 For example, making sexual harassment claims actionable would make every sexual advance a “potential lawsuit, . . . ignor[ing] the reality of [the natural] sexual attraction
between men and women, and . . . invit[ing] false claims of sexual advances as retaliation for negative employment decisions or discipline.”39
Courts are now taking a different stance when the issue of same-sex hostile work environment sexual harassment arises.40 The Fifth Circuit has
held that same-sex sexual harassment claims are never cognizable under
Title VII.41 Other decisions held that such claims are actionable only if the
plaintiff can prove that the harasser is homosexual, so as to prove that the
harassment is motivated by sexual desire. 42 The Fourth Circuit Court of
Appeals recognized a Title VII cause of action for same-sex sexual harassment; however, the court required proof that the harasser was homosexual in order to satisfy the “because of sex requirement.”43 The Sixth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals both recognized Title VII claims for same-sex sexual harassment.44 In Yeary v.
37.
38.
39.
See Corne, 390 F. Supp. at 163; Miller, 418 F. Supp. at 236.
See Flynn, supra note 30, at 1103.
Id. at 1104 (citing Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp.
533, 557 (D.N.J. 1976); Corne v. Bausch & Lomb, Inc., 390 F. Supp 161 (1975);
Miller v. Bank of America, 418 F. Supp. 233, 236 (1976)).
40. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998).
41. See Goluszek v. H.P. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988). Anthony
Goluszek was a discharged worker of Polish origin who brought suit against his
employer H.P. Smith. See id. at 1453. Goluszek alleged that co-workers repeatedly
made comments about his supposed sexual inexperience, showed him nude pictures
of women, accused him of being gay or bisexual and made other sex-related comments. See id. at 1454. The suit alleged not only sexual harassment in the workplace, but also retaliatory discharge and discrimination based upon national origin.
See id. at 1455. The District Court held that harassment by a male co -worker did
not create an anti-male environment in the workplace and did not present an actionable sexual harassment claim under Title VII. See id. at 1456.
42. See McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th
Cir. 1996). The Fourth Circuit held that a claim of hostile environment sexual
harassment is not actionable under Title VII where both the alleged harasser and
victim are heterosexuals of the same sex. See id. at 1195. The court reasoned that
the conduct might have been because of the perpetrators’ own sexual perversion,
obsession or insecurity, but not specifically because of sex. See id. at 1195-96; see
also Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996). In
Wrightson, the Fourth Circuit held that a Title VII claim for same-sex hostile environment sexual harassment may exist where the harasser is homosexual. See id. at
141. The court reasoned that the homosexuality of the harasser caused him to ha rass a male employee because of the employee’s gender, thus making a connection
between the harassment to gender discrimination. See id. at 141-43.
43. See McWilliams, 72 F.3d at 1195.
44. See Yeary v. Goodwill Indus., Inc., 107 F.3d 443, 448 (6th Cir. 1997); see
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Goodwill Indus.-Knoxville, Inc.,45 the Sixth Circuit held that a Title VII
claim is actionable when a homosexual male supervisor propositions another male due to sexual attraction.46 Similarly in Fredette v. BVP Management Assoc.,47 the Eleventh Circuit allowed Title VII protection to an
employee who was subject to solicitation of sexual favors by his homosexual male superior.48 The Eighth Circuit held in Quick v. Donaldson Co.,
Inc.49 that the district court had erred in holding that Title VII protects a
male employee from sexual harassment by a male supervisor only if the
environment is anti-male or predominately female.50 Instead, the court
held that the proper standard in determining whether harassment occurred
because of sex is whether male employees were treated differently than
female employees.51 Lastly, the Seventh Circuit Court of Appeals in Doe
v. Belleville52 suggested that workplace harassment which is sexual in content is always actionable, regardless of the harasser’s sex, sexual orientation, or motivation.53 The Seventh Circuit, however, retreated from this
also Fredette v. BVP Management Assoc., 112 F.3d 1503, 1510 (11th Cir. 1997).
45. 107 F.3d 443 (6th Cir. 1997). In this case, a homosexual supervisor grabbed
a male employee’s arm and rubbed the back of his hand across the employee’s
chest and stomach. See id. at 444. The supervisor also engaged in telephone conversations with the employee which involved lewd and obscene comments. See id.
The court reasoned that harassment motivated by sexual attraction occurs because
of the sex of the victim, regardless of whether they are of the same se x as the harasser. See id. at 447-48.
46. See id.
47. 112 F.3d 1503 (11th Cir. 1997). In this case, a homosexual male maitre d’
repeatedly propositioned a male waiter for sexual favors in return for job benefits.
See id. at 1504. The court reasoned that the motives of a homosexual harasser are
the same as the motivations of a heterosexual harasser in that both make advances
which are dependent on the sex of the victim. See id. at 1510. This factor helped
the court hold that the harassment occurred because of sex. See id.
48. See id. at 1510.
49. 90 F.3d 1372 (8th Cir. 1996). In this case, Quick alleged that male emplo yees had grabbed his crotch over one hundred times during his employment. See id.
at 1374. The district court held that in order to prevail he had the burden of proving that the environment was actually anti-male or mostly female, which he did not
do. See id. at 1375-76. In rejecting this holding, the Eighth Circuit reasoned that in
order to be harassed because of one’s sex, the harasser has to subject members of
one gender to disadvantageous terms or conditions of employment to which me mbers of the opposite sex are not submitted See id. at 1378.
50. See id.
51. See id.
52. 119 F.3d 563 (7th Cir. 1997).
53. See id. at 588. The Seventh Circuit held that same-sex sexual harassment
was a cognizable claim under Title VII regardless of the sexual orientation of the
harasser. See id. at 574. The court held that the harasser's sexually explicit actions
spoke for themselves in proving that the harassment occurred because of sex. See
id. at 577. Although the court approved the notion that all sexually explicit co nduct occurs because of sex, the majority did not rely on it as the basis for its dec i-
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holding in Johnson v. Hondo, Inc.54 when it rejected a plaintiff’s Title VII
cause of action because he offered no more than the sexually explicit content of the harassment to prove that it occurred because of sex.55
C. Sexual Harassment Under Title VII is Accepted
The Supreme Court, in a unanimous decision, recognized sexual harassment as a form of sexual discrimination for the first time in 1986 with
its decision in Meritor Savings Bank v. Vinson.56 This case involved
Michelle Vinson, a bank employee, who engaged in sexual relations with
her supervisor numerous times during her employment. 57 Vinson explained that her behavior was motivated by fear and a desire to keep her
job.58 The Court, in holding that Vinson had established a claim under Title VII,59 concluded that “[w]ithout question, when a supervisor sexually
harasses a subordinate because of the subordinate’s sex, that supervisor
‘discriminate[s]’ on the basis of sex.”60
The Court attempted to provide guidance on the issue of sexual harassment by stating that the harassment had to be both severe and pervasive
enough to actually alter the conditions of employment. 61 The Court added
that it is necessary in any sexual harassment claim to establish that the
sexual advances were unwelcome.62 Finally, in recognizing that both men
and women could be the targets of harassment, the Meritor Court concluded:
sion due to the existence of additional evidence which linked the harassment to the
victim’s gender. See id. at 590. Regardless of this, the court implied that same-sex
harassment that is sexually explicit creates a presumption that it occurred because
of gender and is encompassed by Title VII protection. See id. at 590-91.
54. 125 F.3d 408 (7th Cir. 1997). In this case, Johnson was told by a male co worker that he was going to force Johnson to perform oral sex on him and also
commented about Johnson’s girlfriend also having to perform oral sex on him. See
id. at 410-11. He also frequently brushed up against Johnson while grabbing himself. See id. at 410. The court denied Johnson’s claim reasoning that there was
insufficient evidence to suggest that the harassment was based on Johnson’s gender. See id. at 412. Although there was evidence of strong sexual content in the
remarks made to him, such evidence alone is not enough to prove that the sexually
explicit harassment was gender discrimination. See id. at 413.
55. See id. at 412-13.
56. 477 U.S. 57 (1986).
57. See id. at 60.
58. See id. (alleging that her supervisor made repeated demands for sexual favors, fondled her in front of other employees, had intercourse with her between
forty and fifty occasions, and forcibly raped her on several occasions).
59. See id. at 66.
60. Id. at 64.
61. See id. at 67.
62. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986).
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[s]exual harassment which creates a hostile or offensive environment for
members of one sex is every bit the arbitrary barrier to sexual equality at the
workplace that racial harassment is to racial equality. Surely, a requirement
that a man or woman run a gauntlet of sexual abuse in return for the privilege
of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.63
The Supreme Court held its ground and reaffirmed Meritor in Harris v.
Forklift Systems Inc.64 In this case, the plaintiff alleged that her boss, the
president of the company, verbally harassed her by making statements
such as: “[y]ou’re a woman, what do you know,” “[w]e need a man [in
your position],” and went so far as to call her a “dumb ass woman.” 65 Other incidents included the defendant asking the plaintiff to a motel to negotiate a raise, asking her to reach in his front pocket for money, and making
sexual reference to the way she dressed. 66 In ruling that Harris had an actionable claim against Forklift Systems, the Court reiterated its opinion in
Meritor by stating that Title VII was intended to prohibit the disparate
treatment of men and women in the workplace.67
D. Types of Sexual Harassment
The two forms of sexual harassment actionable under Title VII are quid
pro quo harassment and hostile work environment harassment. 68 Quid pro
quo sexual harassment occurs when an employee must submit to harassment as a condition of receiving a benefit or of retaining employment. 69
Hostile work environment harassment occurs when an employee is subject
to discriminatory intimidation, ridicule or insult, that is “sufficiently severe
63.
64.
Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).
510 U.S. 17, 23 (1993). Harris is a Title VII action filed by an employee
who claimed that the conduct of an employer amounted to an abusive work environment which constituted sexual harassment on the basis of gender. See id. at 17.
The Supreme Court held that: (1) in order for a hostile work environment sexual
harassment claim to be actionable, the conduct does not have to “seriously affect
[an employee’s psychological] well-being or lead the plaintiff to ‘suffer injury;’”
(2) it is a requirement under Meritor that there exist an “objectively hostile or abusive [work] environment” as well as the victim’s subjective perception that the
environment is abusive; and (3) for an environment to be sufficiently “hostile” or
“abusive” one must take into consideration all the circumstances surrounding the
incident, no one factor will suffice. See id. at 17.
65. Id. at 19.
66. See id.
67. See id. at 21.
68. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986).
69. See Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994) (stating
that “quid pro quo harassment occurs when ‘submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment dec isions affecting such individual’”) (citing 29 C.F.R. § 1604.11(a)(2)
(1993))(alteration in original).
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or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”70
1. Quid Pro Quo Harassment
Quid pro quo harassment violates Title VII because it constitutes a barrier for employees by putting them in a position in which they must choose
between acceding to sexual demands or suffering adverse consequences in
their employment.71 In these types of cases, the courts have held employers strictly liable for a supervisor’s conduct. 72 The Second Circuit held
that “[b]ecause the quid pro quo harasser, by definition, wields the employer’s authority to alter the terms and conditions of employment — either actually or apparently — the law imposes strict liability on the employer . . . .”73
In order to establish a claim for quid pro quo sexual harassment, the person demanding the sexual favors must be in a position of authority so as to
be able to carry out the threats made to the victim. 74 Once this is established, the victim must prove an additional four elements for a prima facie
case:75 (1) the employee is a member of a protected class; 76 (2) the harassing conduct, sexual advances, or requests for sexual favors were unwel-
70. Meritor, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904
(1982)).
71. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987). Hicks
involved a black female security officer who alleged evidence existed that she was
subjected to quid pro quo sexual harassment. See id. The Court of Appeals stated
that quid pro quo sexual harassment occurs when “tangible job benefits are cond itioned on an employee’s submission to conduct of a sexual nature and that adverse
job consequences result from the employee’s refusal to submit to the conduct.” Id.
at 1414.
72. See Karibian, 14 F.3d at 777; Miller v. Bank of America, 600 F.2d 211, 213
(9th Cir. 1979); Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1992).
73. Karibian, 14 F.3d at 777 (emphasis omitted). In a Title VII case, the concept of “respondeat superior” holds an employer liable for the discriminatory a ctions of its supervisors which affect the tangible job benefits of an employee. See
Gay v. Bd. of Trustees of San Jacinto College, 608 F.2d 127, 128 (5th Cir. 1979);
Young v. Southwestern Sav. and Loan Ass’n., 509 F.2d 140, 144 n.7 (5th Cir.
1975); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 441-42 (5th Cir.
1974), cert. denied, 419 U.S. 1033 (1974).
74. See Gary v. Long, 59 F.3d 1391, 1396 (D.C. Cir. 1995). In this action, a
female employee brought suit against a supervisor and her employer alleging a
violation of Title VII by subjecting her to sexual harassment. See id. The Court of
Appeals held that “it takes more than saber rattling alone to impose quid pro quo
liability on an employer; the supervisor must have wielded the authority entrusted
to him to subject the victim to adverse job consequences as a result of her refusal to
submit to unwelcome sexual advances.” Id.
75. See Henson, 682 F.2d at 909.
76. See id. This element is one that is easily satisfied because a member of a
protected group can simply be a man or a woman. See id. at 903.
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951
come to the employee;77 (3) the harassment complained of was based on
sex;78 and (4) the harassment must affect a term, condition, compensation,
or privilege of employment.79
Employers are held strictly liable for the conduct of their management
that amounts to quid pro quo sexual harassment. 80 An employer does not
escape liability by implementing an anti-harassment policy81 or claiming
that they are unaware of the harassing conduct. 82 A few courts have held
that an employer can avoid liability under Title VII if there is an antiharassment policy and the employer, once aware of the harassment,
promptly takes action that amounts to a stoppage of the harassment or
some other remedial action.83
2. Hostile Work Environment Harassment
Hostile work environment harassment is another form of sexual harassment that amounts to a violation of Title VII. 84 Hostile work environment
harassment differs from quid pro quo harassment in that it does not involve
tangible aspects of the employee’s employment. 85 Instead, the victim must
show that he or she endured an environment that substantially affected a
term or condition of their employment regardless of any economic, psychological, or emotional harm. 86 In order to establish a prima facie case
the victim must satisfy the following five elements: (1) they are a member
of a protected class;87 (2) they were subject to unwelcome sexual advanc77. See id. The word “unwelcome” is defined as conduct “in the sense that the
employee did not solicit or incite it, and in the sense that the employee regarded the
conduct as undesirable or offensive.” Id. at 903.
78. See id. at 909. This is one of the most crucial elements for a prima facie
case due to the fact that it is not usually obvious that the victim was harassed b ecause of their gender. See Taylor, supra note 27, at n.38. The plaintiff has the job
of proving that “but for” his or her sex he or she would not have been the object of
sexual harassment. See id. at 309.
79. See id. at 909. This element is satisfied when the employee shows that nonacceptance of a sexual demand was detrimental to employment (e.g., a salary decrease) or that acceding to the demands resulted in a benefit (e.g., a salary increase). See Taylor, supra note 27, at 310.
80. See Karibian, 14 F.3d at 777.
81. See Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir. 1979).
82. See Taylor, supra note 27, at 310.
83. See George, supra note 25, at 254.
84. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (stating that “a
plaintiff may establish a violation of Title VII by proving that discrimination based
on sex has created a hostile or abusive work environment”).
85. See Taylor, supra note 27, at 310.
86. See George, supra note 25, at 254.
87. See Richard F. Storrow, Same-Sex Sexual Harassment Claims After Oncale:
Defining the Boundaries of Actionable Conduct, 47 AM. U. L. REV. 677, 685
(1998); see also Yearly v. Goodwill Indus., Inc., 107 F.3d 443, 445 (6th Cir. 1997)
(laying out the elements for a claim of sexual discrimination based on a hostile
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es;88 (3) the harassment was based on sex; 89 (4) the sexual harassment interfered with the victim’s work performance and created an intimidating,
hostile, or offensive work environment; 90 and (5) the victim must show
that the employer knew or should have known of the harassment in question and failed to take remedial action.91
To be actionable, the sexual harassment must have been so severe and
pervasive that it altered the conditions of employment and created an abusive work environment.92 In order to be deemed both pervasive and severe, the victims bear the burden of proving that the conduct was subjectively pervasive.93 Additionally, the victim must perceive the harassment
as an alteration of the working conditions that creates a hostile environment.94
III. JOSEPH ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC.
A. Background
Joseph Oncale was employed by Sundowner on an eight-man oil platform crew.95 He alleged that on numerous occasions he was forcibly subjected to sex-related actions against him by male co-workers in the pres-
work environment).
88. See Storrow, supra note 87, at 685. Conduct is “unwelcome” if the employee does not solicit or incite it and finds the conduct to be undesirable or offe nsive.
See Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
89. See Storrow, supra note 87, at 685. The “but for” test is used for this element, requiring the plaintiff to show that “but for” the employee’s gender, he or
she would not have been harassed. See Henson, 682 F.2d at 904.
90. See Storrow, supra note 87, at 685.
91. See id. There exists a split in the lower courts as to whether, in order to be
held liable, an employer must have knowledge of actions and conditions of the
employment which caused the hostile work environment. See id. at 683 n. 30.
Strict liability, however, is imposed on employers for sexual harassment by supe rvisory employees. See id. Regardless, “the victim’s employer is liable for damages if knowledge of the harassment can be imputed to the employer and the employer fails to take corrective action.” Id. at 683.
92. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).
93. See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993).
94. See Storrow, supra note 87, at 687-88. The existence of a hostile environment should be evaluated from both an objective and a subjective perspective:
[C]onduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the env ironment to be abusive, the conduct has not actually altered the cond itions of the victim’s employment, and there is no Title VII violation.
Id. at n. 51 (quoting Harris v. Forklift Systems Inc., 510 U.S. 17, 21-22 (1993)).
95. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77 (1998).
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ence of the rest of the crew. 96 He claimed that one of the male co-workers
threatened him with rape and physically assaulted him in a sexual manner.97 Additionally, he claimed that his complaints to supervisory personnel regarding the co-worker’s behavior were ignored.98 At one point, the
company’s Safety Compliance Clerk, Valent Hohen, told Oncale that the
other employees targeted him as well “call[ing him] a name suggesting
homosexuality.”99 Oncale quit his job fearing that if he did not he would
have been forced to perform sexual acts or be raped.100
B. Procedural History
Oncale filed a complaint against his employer in the United States District Court for the Eastern District of Louisiana. 101 His complaint alleged
that he was discriminated against in his employment because of his sex. 102
The district court relied on the ruling in Garcia v. Elf Atochem North
America103 to make its decision and stated “that Mr. Oncale, a male, has no
cause of action under Title VII for harassment by male co-workers.”104
Oncale appealed this ruling, but the Fifth Circuit Court of Appeals concluded that Garcia was binding and affirmed the district court’s ruling. 105
The Supreme Court granted certiorari.106
C. The Supreme Court’s Ruling
The United States Supreme Court reversed and remanded the Fifth Cir-
96.
97.
98.
99.
100.
101.
102.
103.
See id.
See id.
See id.
Id.
See id.
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 75 (1998).
See id.
28 F.3d 446 (5th Cir. 1994). In Garcia, the Plaintiff, Freddy Garcia, brought
a Title VII action against the defendants, Elf Atochem North America and Ozark
Mahoney and Co., the plant manager and foreman, alleging sexual harassment. See
id. at 448. Garcia alleged that the plant foreman, Rayford Locke, had on several
occasions approached Garcia from behind and reached around and grabbed his
crotch area and made sexual motions from behind him. See id. The court held that:
(1) any harm suffered by Garcia as a result of the alleged sexual harassment by
Locke is not redressable under Title VII; (2) Ozark Mahoney was not the employer
under Title VII; (3) the foreman was not an employer under Title VII; (4) the manager took adequate steps in response to the harassment; and (5) even if the haras sment had sexual overtones, harassment by a male supervisor against a male subo rdinate is not cognizable under Title VII. See id. at 451-52.
104. Oncale, 523 U.S. at 77.
105. See Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118, 119-20 (5th
Cir. 1996).
106. See Oncale v. Sundowner Offshore Servs., Inc., 520 U.S. 1263, 1263 (1997).
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cuit’s decision.107 In a unanimous decision, the Court held that workplace
sexual harassment is actionable as sex discrimination under Title VII when
the victim and the offender are of the same sex. 108 The Court also ruled
that sexual motivation is not a requisite element in order to support an inference of employment discrimination based on sex in violation of Title
VII.109 Another aspect of the ruling is that the plaintiff bringing suit under
Title VII has the burden of proving “that the conduct at issue was not
merely tinged with offensive sexual connotations, but actually constituted
‘discrimina[tion] . . . because of . . . sex.’”110 Justice Thomas gave a one
sentence concurring opinion, in which he stated that he was in agreement
with the Court because it “stresses that in every sexual harassment case,
the plaintiff must plead and ultimately prove Title VII’s statutory requirement that there be discrimination ‘because of . . . sex.’” 111
D. The Court’s Reasoning
The Court began its evaluation of the claim by citing the language of Title VII of the Civil Rights Act of 1964. 112 It stated that 42 U.S.C. § 2000e2(a)(1)113 “‘evinces a congressional intent to strike at the entire spectrum
of disparate treatment of men and women in employment.’” 114 The Court
further stated that Title VII is violated anytime a victim’s work environment is altered and becomes abusive due to “discriminatory intimidation,
ridicule, and insult . . .[that is] ‘sufficiently severe or pervasive’”115
The Court cited Newport News Shipbuilding & Dry Dock Co. v. Equal
107.
108.
109.
110.
111.
See Oncale, 523 U.S. at 82.
See id.
See id. at 81-82.
Id. at 81.
Id. at 82. John W. Hamlin writes that the only surprise that came from the
Oncale decision was the brief concurring opinion given by Justice Clarence Th omas. See John W. Hamlin, Questions on Same-Sex Sexual Harassment Remain After
Oncale, THE C ONN. L. TRIB., March 16, 1998, at 22. Hamlin explained that many
lawyers with whom he discussed the opinion were baffled by Thomas’ “cryptic
concurrence” and that none could develop a “fully satisfactory explanation for it.”
Id. It is believed that the concurrence “may prove to be a prelude to further uncertainty surrounding the issue of same-sex sexual harassment as the case law develops.” Id.
112. See Oncale , 523 U.S. at 78.
113. The Court cited to the following language: “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, b ecause of such individuals race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1) (1994).
114. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986)).
115. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
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Employment Opportunity Council116 to determine that Title VII’s prohibition of “discrimination ‘because of . . . sex’” protects men as well as women.117 By comparing racial discrimination to sex discrimination, the Court
rejected the presumption that an employer will not discriminate against
members of its own race.118 The Court stated that “‘[b]ecause 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 that group.’”119 Furthermore, the Court stated that there
was nothing in Title VII that barred a claim of discrimination because the
plaintiff and the defendant are of the same sex. 120
Title VII includes the prohibition of sexual harassment in the workplace.
Consequently, sexual harassment must be extended to any type of sexual
harassment that meets the statutory requirements. 121 The Court admitted
that male-to-male sexual harassment in the workplace was not Congress’
intent when it enacted Title VII. 122 Nevertheless, it reasoned that “statutory prohibitions often go beyond the principal evil to cover reasonably
comparable evils.”123 It is precisely the provisions and interpretations of
these laws, rather than the concerns of the original legislators, by which all
are governed.124
Allowing same-sex sexual harassment would, according to the respondents, transform Title VII into a general civility code. 125 The Court rejected
this argument explaining that the risk of this happening would be minimal
and is prevented when adequate attention paid is to the requirements of the
statute.126 The Court drew a critical distinction between discrimination and
116. 462 U.S. 669, 682 (1983). Newport News Shipbuilding involved the Pregnancy Discrimination Act which was an amendment to Title VII which prohibits
discrimination on the basis of pregnancy. See id. at 669. The employer amended
its health insurance to provide female employees benefits for pregnancy related
conditions to an equal extent as other medical conditions. See id. However, the
plan provided benefits to spouses of male employees to a lesser extent. See id. The
Supreme Court held that the pregnancy limitation the employer’s amended health
insurance plan discriminates against male employees in violation of Title VII. See
id. at 694-95.
117. Oncale, 523 U.S. at 78 (quoting Newport News Shipbuilding & Dry Dock
Co. v. EEOC, 462 U.S. 669,682 (1983)).
118. See id.
119. Id. (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977)).
120. See id.
121. See id. at 79-80.
122. See id. at 79
123. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).
124. See id.
125. See id. at 80.
126. See id. In response to the allegation that Title VII would turn into a general
civility code the Supreme Court stated that the law “forbids only behavior so o bjectively offensive as to alter the ‘conditions’ of the victim’s employment . . . that
inquiry requires careful consideration of the social context in which particular b e-
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harassment,127 stating that it had never held workplace harassment to be
discrimination based on sex merely because the words used had sexual
content or overtones.128 It stated that “‘[t]he 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.’”129
The Court next determined that the harassing conduct did not have to be
motivated by sexual desire in order to prove an inference of discrimination
based on sex.130 The Court explains:
A trier of fact might reasonably find such discrimination, for example, if a
female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general
hostility to the presence of women in the workplace. A same-sex harassment
plaintiff may also, of course, offer direct comparative evidence about how
the alleged harasser treated members of both sexes in a mixed-sex workplace.
Whatever evidentiary route the plaintiff chooses to follow, he or she must
always prove that the conduct at issue was not merely tinged with offensive
sexual connotations, but actually constituted “discrimina[tion] . . . because of
. . . sex.”131
Lastly, the Court stated that the objective severity of harassment should
be judged by the perspective of a reasonable person in the same situation
as that of the victim,132 taking into account both the social context in which
the conduct occurred and the target’s experience. 133 The Court reasoned
that “[c]ommon sense, and an appropriate sensitivity to social context, will
enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable
person in the plaintiff’s position would find severely hostile or abusive.” 134
For example, a football player would not find it offensive if the coach were
to smack him on the buttocks as he goes onto the field; however, that same
havior occurs and is experienced by its target.” Id. at 81. It is believed that common sense and an appropriate sensitivity to social context will be enough to enable
a court to distinguish between mere teasing or roughhousing among members of
the same sex, and conduct which a reasonable person in the plaintiff’s position
would find severely hostile or abusive. See David Sherwyn & J. Bruce Tracey,
Sexual-Harassment Liability in 1998, CORNELL HOTEL & RESTAURANT ADMIN. Q.,
Oct. 1, 1998, at 14.
127. See Oncale, 523 U.S. at 80.
128. See id.
129. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).
130. See id.
131. Id. at 80-81.
132. See id. at 81.
133. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
134. Id.
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conduct would be offensive if done by the same coach to his secretary
back at the office.135
Thus, in remanding the Fifth Circuit’s decision, the Court concluded that
sex discrimination consisting of same-sex sexual harassment is a cognizable cause of action under Title VII. 136
IV. ANALYSIS
A. How Employers Will React to the Oncale Decision
Because of the Oncale decision, employers will have to adopt legal
strategies aimed at preventing same-sex sexual harassment suits.137 Attorneys for management will have to respond with new defenses, arguing that
the conduct being complained of is not discrimination based on sex but
merely horseplay138 and will also use what is known as the “equal opportunity offender” defense.139 Furthermore, employers may have to implement changes in the workplace to avoid liability if they are taken to
court.140 Additionally, employers might be persuaded to buy some sexual
harassment insurance.141
1. Defending Same-Sex Sexual Harassment Claims Under Title VII
Surely the decision of Oncale will either spawn new same-sex sexual
harassment claims or facilitate the success of the already existing ones. 142
There exist three major reasons for a belief that the ruling will increase
these types of cases.143 First, the increase is a result of the Supreme Court
making same-sex sexual harassment claims viable.144 Second, these “cases
135. See id.
136. See id. at 82.
137. See infra notes 148-212 and accompanying text.
138. See infra notes 148-60 and accompanying text.
139. See infra notes 161-77 and accompanying text.
140. See infra notes 178-212 and accompanying text.
141. See infra notes 213-28 and accompanying text.
142. See Roy Whitehead Jr., et al., Preparing For Same-Sex Sexual Harassment
Claims, THE CPA J., 54, 54 (1998). It is certain that litigation will increase because a victim of same-sex sexual harassment is now more likely to sue. See Hinkle, et. al., Supreme Court Rules Same-Sex Harassment May Violate Title VII, N.
M. EMPL. L. LETTER, April 1998, at 4. Even though the Supreme Court set out
specific requirements which the victim of a same-sex sexual harassment claim must
meet, the Court has made it clear that these claims are viable in certain situations,
which makes these types of claims much more inviting to employees. See id. The
fact that the Court’s decision has garnered a substantial amount of publicity also
makes employees more aware of the potential for these types of suits, which most
likely will result in more claims. See id.
143. See Carrie Mason-Draffen, Some Expect Jump in Cases, NEWSDAY, Mar. 5,
1998 at A41.
144. See id.
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will now carry the potential for significant monetary awards.”145 Third, the
number of cases could increase because the “federal courts will offer [victims] faster relief . . . .”146 The primary unanswered questions are “who
will benefit most from the ruling” and how will management handle these
inevitable lawsuits.147
Attorneys representing management claim that the decision will be most
beneficial to them.148 They believe that the “because of sex” standard that
the Court outlined in its opinion, along with the reasonableness standard
test, will facilitate the elimination of many cases at an earlier stage of the
judicial process.149 These attorneys feel that the best defense will be to
show that although the conduct might have been inappropriate, it was just
an everyday part of the office environment and does not rise to the level of
discrimination or harassment.150 Clearly, this defense stems from the
Court’s discussion relating to the social context of any conduct which is
questioned.151
This does seem to present a problem for plaintiffs trying to prove that
the conduct to which they were exposed constituted sexual harassment
within the limits of Title VII. The Court gave very little guidance for determining when behavior crosses over the line from general harassment or
horseplay to sex-based discrimination.152 Due to such a broad conductbased analysis, class distinctions might arise in the workplace and different
standards might be set depending on the personal work environment. 153
Attorney Pearl Zuchlewski154 demonstrated her concern over the ruling by
stating that adding “another requirement, that courts may consider social
context is problematic, [but] . . . [d]oes that mean [that] employees in bluecollar situations have less [of an] expectation of protection than someone
in a white-collar, professional environment?”155 It seems that this social
context problem will make it more difficult “for [a victim] to prove motivation or that harassment was based on discrimination.”156
Another facet of the decision that management attorneys favor is the re-
145. Id.
146. Id.
147. Dominic Bencivenga, Same-Sex Harassment; Ruling Puts Work Environment
Under Scrutiny, N.Y. L. J., Mar. 12, 1998, at 5.
148. See id.
149. See id.
150. See id.
151. See supra notes 132-135 and accompanying text.
152. See generally Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 77
(1998).
153. See Bencivenga, supra note 147, at 5.
154. Attorney Pearl Zuchlewski is a partner at Goodman & Zuchlewski, LLP. See
id.
155. Bencivenga, supra note 147, at 5.
156. Id.
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iteration that in order to have a viable harassment claim one needs to prove
discrimination.157 Some courts focused heavily on the offensive behavior
in determining the existence of harassment when, in fact, there was neither
evidence of discrimination nor evidence that the behavior was based on
sex.158 The often accepted notion that simple sexually-oriented behavior
was sexual harassment is no longer enough to prove sexual harassment
unless one can also prove the existence of sex discrimination. 159 Thus, this
is a key distinction that attorneys will use to defend management.160
Oncale established that to prove same-sex harassment the plaintiff “must
always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] . . .
because . . . of sex.’”161 This means that a plaintiff will have to show both
motivation and conduct in order to prevail in a same-sex lawsuit.162 Proving motivation will be an extremely difficult burden to satisfy 163 as the
troubling question is whether the conduct is truly based on sex. 164 The
Court in Oncale failed to find that the harassment was based on sex because there were no women on the oil rig and plaintiff was the only one
being harassed.165 Therefore, it was not possible to prove that “his coworkers were motivated by gender when no other man was harassed, and
when there were no women to be harassed.” 166
This problem has spawned what is called the “equal opportunity sexual
harasser.”167 This new defense is explained as follows:
By way of providing guidance for determining motivation, the [C]ourt instructed fact finders to look at how harassers treat members of both sexes in a
mixed sex workplace. The implication of this instruction is clear. A plaintiff
could not make a case of same-sex harassment if members of the opposite
sex were treated in the same manner. Thus, a male employee whose male supervisor taunts the employee about sex and then grabs the employee’s buttocks and rubs his chest likely will not have a case of sexual harassment if
the supervisor also grabs a female subordinate’s buttocks and rubs her
chest.168
The man in this case would not have a claim because the conduct was not
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
See id.
See id. at 5, 10.
See id. at 10.
See id.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
See id.
See Sherwyn & Tracey, supra note 126, at 19.
See id.
See Oncale, 523 U.S. at 77.
Sherwyn & Tracey, supra note 126, at 20.
Id.
Id.
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based on motivation due to gender; however, a female will also not have a
claim due to the same reasoning.169
In the past, posters of naked women posted in a visible area have exposed employers to claims of sexual harassment by female employees. 170
Now it seems that an employer could escape liability simply by displaying
posters of naked males as well.171 Sexually explicit conversations would
seem to be appropriate in the workplace as long as both males and females
were participating.172 Lastly, supervisors who grope members of the opposite sex can shield themselves by also groping members of the same sex. 173
Of course, whether or not this defense would hold up in court still remains
to be seen.174
Not all management attorneys feel the ruling will help the early disposition of cases.175 One attorney feels that using common sense could in fact
be a burden for lawyers, stating that “‘[a] standard of common sense is
going to leave the door wide open for a judge to determine [whether] the
jury should decide what is common sense . . . [t]he common sense of juries
can span a whole range of behavior.’”176 Another concern is that some
lower courts do not prohibit sexual orientation discrimination, so in order
for a plaintiff to have his day in court he will have to bring his claim under
a Title VII action.177
2. Protecting Against Liability of Same-Sex Sexual Harassment
Claims
Now that employers are facing the reality of same-sex sexual harassment claims, they must take steps to protect themselves from liability. 178
The Equal Employment Opportunity Commission stated that the existence
of a sexual harassment policy and grievance procedure is taken into consideration in sexual harassment cases and will affect the employer’s liability.179 Employers can seize this opportunity and use it as a defense in their
proceedings. In Meritor Savings Bank v. Vinson180 the Court indicated that
if an employer has a reasonable policy under which the employer promptly
takes a remedial action on any complaint, the employer can be shielded
169. See id.
170. See id.
171. See id.
172. See Sherwyn & Tracey, supra note 126, at 19.
173. See id.
174. See id.
175. See Bencivenga, supra note 147, at 10.
176. Id. (quoting Marc L. Silverman, a management attorney and partner at Brown
& Wood).
177. See id.
178. See Whitehead, et al., supra note 142, at 54.
179. See id.; see also 29 C.F.R. § 1604(F) (1998).
180. 477 U.S. 57 (1986).
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from any liability.181
An employer’s response upon receiving a complaint is extremely important and should not be taken lightly.182 Several cases have illustrated
the fact that prompt and appropriate remedial action prevents employer
liability.183 The Second Circuit, in Perry v. Ethan Allen, Inc., found that
an employer had taken prompt and appropriate remedial action and therefore dismissed the Title VII action against them. 184 The employer investigated a sexual harassment complaint by confronting and warning the accused employees on the very day the complaint was filed by the victim. 185
The Sixth Circuit, in Blankenship v. Parke Care Centers, Inc.,186 also
found in favor of an employer who had taken prompt remedial action.
After an employee complained of being sexually harassed by a janitor, the
employer investigated the complaint and moved the alleged harasser to a
different area of the building and increased his supervision. 187 The employee complained two more times; at that point the employer told the
alleged harasser that he would be terminated if there were any more complaints.188 However, the employer also told the victim that it was not possible to make a guarantee that she would never come into contact with the
alleged harasser and that if this were not an appropriate response to her
complaints she would have to resign. 189 The court found the actions taken
by the employer in response to the complaints to be reasonable and adequate.190
The following guidelines have been offered to help management meet its
responsibility to employees and can also be used as a defense to future
181.
182.
See id. at 69-73; see also Whitehead, et al., supra note 142, at 54.
See Peter M. Panken, et.al., New Developments in Sex Harassment, SC63
ALI-ABA 83, 86 (1998).
183. See id. at 86.
184. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir. 1997).
185. See id. at 154.
186. 123 F.3d 868, 870 (6th Cir. 1997).
187. See id. at 871.
188. See id.
189. See id.
190. See id. at 874-75; see also Baskerville v. Culligan Int’l Co., 50 F.3d 428 (7th
Cir. 1995). The court in Baskerville found the employer not liable under Title VII
because it took the reasonable steps necessary in order to protect the harassed e mployee from the alleged harasser/supervisor and did so promptly. See id. at 432-33.
After the first complaint, the harasser was spoken to by his supervisor, after the
second complaint the following response was initiated: (1) he was warned that the
conduct must be stopped; (2) the harasser was put on probation; and (3) the ha rasser’s salary increase was delayed by several months. See id. at 432. The court
noted that an employer is only held liable for sexual harassment by one employee
toward another if negligence is involved on the part of the employer. See id. It
stated that an employer discharges its legal duty “if it takes reasonable steps to
discover and rectify acts of sexual harassment of its employees.” Id.
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same-sex sexual harassment claims under Title VII:
[1.] The employer should have a strong well-articulated policy concerning
sexually offensive activity. The policy should clearly indicate that both opposite-sex and same-sex harassment are covered.
[2.] All employees should be informed of and given a copy of the policy.
[3.] A complaint procedure should be devised that allows employees to complain to someone other than the harasser.
[4.] The employer should swiftly take appropriate remedial action by fairly
investigating, taking strong action when necessary, protecting the victim
from retaliation, and restoring any lost job benefits in a timely manner. 191
The most important factor is that the employer takes immediate affirmative action upon encountering a complaint. 192 If an employer does so, he
could be free of liability even if no policy exists 193 since one element the
victim must prove is that the employer knew or should have known of the
conduct and took no remedial action.194
Some legal experts are ready to provide guidance to employers on how
to investigate allegations of sexual harassment in order to avoid liability. 195
191.
192.
Whitehead, et al., supra note 142, at 55.
See id. The worst possible thing a company could do if it is aware of a
same-sex sexual harassment problem is to either not take immediate action or do
not take action at all. See Thomas S. Sipkins, Companies Must Guard Against
Same-Sex Harassment; Employee Policies Should be Updated and Implemented,
Thereby Limiting a Firm’s Liability, STAR TRIB.., Mar. 9, 1998, at 3D. A company
must handle and investigate a same-sex complaint as aggressively as it would handle a complaint between a man and a woman. See id. Not to comply is “unfair to
[the] employees and potentially dangerous to [the] company.” Id.
193. See id.
194. See Panken, et al., supra note 182, at 86. The Second Circuit Court of Appeals concluded that a manager’s failure to investigate sexual harassment alleg ations of an employee who repeatedly requested confidentiality was not unreasonable given the employee’s requests. See id. at 84. In Torres v. Pisano, 116 F.3d 625
(2d Cir. 1997), the court concluded that there is no categorical answer to the question whether a supervisor violates his duty to investigate an d remedy harassment by
acceding to the complaining employee’s wish for confidentiality. See Torres, 116
F.3d at 639. There was no breach of duty to protect the employee from harassment
by the manager because the harassment was isolated and there were no a llegations
of serious physical or psychological harm that would have occurred. See id.
The Seventh Circuit took a different view when they held that when the ma nager is a reasonable person to complain to, a company is put on notice by the plaintiff’s complaint and should act. See Young v. Bayer Corp., 123 F.3d 672, 675 (7th
Cir. 1997). The court cited Torres in holding that the employer is placed on notice
when the victim contacts either the person charged by the company to handle such
complaints, a person who the employee reasonably believes is authorized to receive
and pass on such complaints (even if he or she is not so authorized), or a person
who ought to do something about it. See id. at 674.
195. See Kenneth M. Jarin & Ellen K. Pomfret, New Rules for Same Sex Harass-
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For example, Kenneth M. Jarin and Ellen K. Pomfret feel there are two
reasons that same-sex sexual harassment cases will be more difficult for
employers to investigate than female-male sexual harassment:
First, in its decision in Oncale, the high court stressed that alleged harassment should be examined from the point of view of a reasonable person in
the plaintiff’s position. This means that actions that could be considered harassment in one situation may not be considered harassment in another context. So, employers will need to conduct a fairly fact-specific analysis and
carefully examine the social context of all incidents of alleged harassment.
Second, as noted previously, when sexual desire is not present in samesex harassment cases, it may be much more difficult to determine if harassment occurred “because of sex.” For example, it is difficult to tell in the Oncale case if the alleged victim was harassed because of his sex or for some
other reason.196
The first step in the investigation is choosing the correct investigator. 197
The right investigator should be knowledgeable of all types of sexual harassment claims and should have training on how to handle these types of
claims along with knowing what evidence to gather. 198 One possibility is
choosing an investigator that is the same sex as the victim, especially
where the victim is embarrassed by the conduct. 199 Although there is not a
set formula, the following list of questions is an appropriate place to start
an investigation:
(1) Who is the alleged perpetrator, what were his/her specific actions,
and to whom were those actions directed?
(2) When, where, why, and how did the incident in question happen?
(3) Did anyone witness the alleged conduct?
(4) How has the alleged conduct affected the victim-employee in terms
of emotional distress and work production?
(5) How did the victim react to the alleged harassing conduct?
(6) Was anyone else harassed or was there any prior incidents of sexual
harassment between the employees involved? 200
Further, the investigator should interview both employees separately in a
confidential201 and non-confrontational setting.202 It is important that the
ment, HRMAG ., June 1, 1998, at 115.
196. Id. at 118
197. See id. at 119.
198. See id.
199. See id.
200. See Jarin & Pomfret, supra note 195, at 120.
201. See id. It is important that the complaining party is assured confidentiality
regarding the investigation and the results. See Michael Mallery, The Answers to
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harasser be allowed to give his or her version of the incident and should be
given as much information about the allegations as possible in order for
the interviewer to receive a thorough and full response. 203 Witnesses
should be used to corroborate either the victim’s or the alleged harasser’s
story.204
A complete and accurate written record should be retained. 205 The record
should also be confidential and kept separate from the employee’s personnel file.206 The investigator should always be aware that a written record
could be part of the employer’s defense and could be subject to discovery
during any subsequent litigation.207 At the end of the investigation period,
it is the duty of the employer to make a determination as to what type of
action, if any, should be pursued.208
Terminating the alleged harasser is one viable option the employer has
to resolve this issue. However, this remedial action could prove to be costly for the employer.209 Twenty-six million dollars was awarded to a Miller
Company executive by a Wisconsin state court when he “was fired after
discussing an episode of the ‘Seinfeld’ show with a female co-worker who
was offended by the conclusion.”210 The company executive was simply
expressing to the female co-worker his surprise to the references of the
word “clitoris” which were allowed on the air and showed her a photocopy
of the word’s dictionary definition.211 The Eleventh Circuit also found in
favor of the alleged harasser when a company retaliated against an employee’s complaints by terminating his employment after he had given
damaging testimony about his harassing conduct in a deposition to which
he was involuntarily subpoenaed to testify. 212
Your Questions About Sexual Harassment (Workforce Tools), WORKFORCE, Nov. 1,
1997, at S7. After completion of the investigation and when a decision is made
concerning the alleged sexual harasser, “the appropriate remedial and punitive
measures should occur in a confidential manner.” Id. An employer should ensure a
complaining employee that there will be no retaliation against him or any other
personnel. See id.
202. See Jarin & Pomfret, supra note 195, at 120.
203. See id.
204. See id.
205. See id.
206. See id.
207. See id.
208. See Jarin & Pomfret, supra note 195, at 120-21. There is no rule as to what
form of punishment or level of discipline is required if the alleged harasser is found
to be guilty. See Mallery, supra note 201, at S7. However, if an employer makes a
reasonable attempt to stop the offensive conduct and supports his efforts with fu rther education of employees, “any claimant would have diff iculty convincing a jury
the discipline taken was inappropriate.” Id.
209. See Panken, et al., supra note 182, at 83.
210. Id. at 93.
211. See id.
212. See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1182 (11th Cir. 1997). The
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3. A Sexual Harassment Insurance Policy
A new insurance policy has come into existence covering employers
sued for such charges as harassment, discrimination, and wrongful discharge.213 Employment Practice Liability Insurance was non-existent five
years ago; however, approximately fifty percent of the Fortune 500 companies have bought the coverage since then. 214 An insurance policy that
covers any employment-related claims “may be the only way to adequately
protect [a] company’s bottom line.” 215 The obvious reason for coverage is
that suing a boss for mistreatment has become easier and more lucrative. 216
Although it is easier to sue, this does not mean that it has become more
likely to win a judgment. Another motivational factor for the coverage is
the number of harassment cases and complaints being filed. 217 The Equal
Employment Opportunity Commission (EEOC) received 15,889 sexual
harassment complaints in 1997 as opposed to only 6,883 in 1991.218 Employers are also swayed by the amount of money being awarded in judgments.219 The largest award in an EEOC case in 1996 was $1.3 million,
while in 1998 that figure jumped to $10 million. 220 Many employers are
reluctant to jump on the insurance bandwagon and feel that all the excitement is merely “insurance-industry hype.”221 Richard Inserra of Union
Carbide222 believes that “if [employers] treat [their] employees right, [they]
court was quick to point out that termination was not the correct option in this case,
however, they stated that “[n]othing [they said was] intended to imply that the anti retaliation provision in Title VII prohibits an employer from imposing discipline,
including termination, on any employee who sexually harasses or otherwise discriminates against other employees.” Id. at 1188.
213. See Jolie Solomon, An Insurance Policy With Sex Appeal, NEWSWEEK, Mar.
16, 1998, at 44.
214. See id. at 44 (according to the trade group Insurance Information Institute).
215. Hinkle, et. al., supra note 142, at 4.
216. See id.
217. See id.
218. See Solomon, supra note 213, at 44.
219. See Hinkle, et. al., supra note 142, at 6. It is inevitable that the settlement
values for same-sex sexual harassment cases will begin to increase. See id. It
seems that most cases will be referred to a jury for decision because of “[t]he S upreme Court’s emphasis on common sense and a review of the societal context of
conduct claimed to be harassment.” Id. In cases involving different sexes in harassment cases juries have not been very forgiving of employers when an employee
is harassed by a supervisor. See id. This will most likely result in employers attempting to settle a case before it reaches trial, “and the cost of doing so will rise.”
Id.
220. See Solomon, supra note 213, at 44.
221. Id.
222. See Solomon, supra note 213, at 44. Although the insurance coverage was
expensive when it was first made available the costs are beginning to co me down.
See Hinkle, et. al., supra note 142, at 4. One possible explanation for the decline
of the costs for coverage could be that at first the coverage was offered by few
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don’t need it, especially at current prices. . . .[Other commentators worry
that] once employees — and attorneys — see the deep pockets of insurers,
they’re more likely to sue.” 223
In some cases, an employer’s pre-existing insurance coverage can have
stipulations included that can cover its expenses in a sexual harassment
suit.224 For example, a federal court in Wisconsin ordered an insurance
company to pay an employer for its attorney fees and costs incurred when
the company defended a sexual harassment suit brought by a former employee.225 The court held that the sexual harassment suit constituted slander, and since the company’s policy contained a personal injury provision
that included slander or libel,226 the insurance company was ordered to
pay.227 However, an employer should not count on the pre-existing insurance policy to cover sexual harassment. The Fifth Circuit concluded that
“under Mississippi law, EEOC allegations that the [c]ompany failed to
investigate sexual harassment complaints, take action, or provide an avenue for redress came within the ‘intentional-acts exclusion’ to the general
liability coverage . . . . As a result, the insurance agency had no duty to
defend the employer.”228
B. Sexual Harassment Redefined in 1998 by Oncale and Two Other
insurers. See id. According to Gerard Albanese, Senior Vice President for Shand
Morahan, whose company offers a range of employment practice liability insurance
coverage believes that due to a very active market “[more insurers are] offering
EPLI [(employment practice liability insurance)] than ever before.” Tony Attrino,
CFO’s Urged to Learn Costs of Bias Cases, NAT’ L UNDERWRITER , Oct. 26, 1998,
at S17. There are several different types of employment practice liability insu rance, some insurers offer a policy that covers all employment related risks by co vering any employee claims against the employer with the exception of bodily injury
or property damage claims. See Hinkle, et. al., supra note 142, at 4. It is this “all
risks” policy which is considered the expensive option. Id.
223. See Solomon, supra note 213, at 44.
224. See Bradley Corp. v. Zurich Ins. Co., 984 F. Supp. 1193, 1198 (E.D. Wis.
1997). Bradley states that:
Words in coverage clauses are interpreted broadly to afford the greatest protection to the policyholder. If the policy language is reasonably susceptible
to more than one construction, the ambiguity must be construed strictly
against the insurer. If there is a possibility of recovery on any covered claim
in the complaint, an insurer must provide a defense to the entire lawsuit, even
if other allegations are not covered by the insurance.
See id. (citations omitted).
225. See id. at 1206.
226. See id. at 1199.
227. See id.
228. Panken, et al., supra note 182, at 85 (quoting American States Ins. Co. v.
Natchez Steam Laundry, 131 F.3d 551, 554 (5th Cir. 1998)).
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Major Decisions
Oncale is just one of three recent Supreme Court decisions that have redefined workplace sexual harassment.229 The decisions that accompany
Oncale are Burlington Industries, Inc. v. Ellerth230 and Faragher v. City of
Boca Raton.231 In both cases, the Court held that an employer is liable for
discrimination by a supervisor where the supervisor is an agent of the employer, and the ability to harass an employee stems from the authority given to the supervisor by an employer.232 These decisions also limit the liability of employers who establish a meaningful and effective policy against
sexual harassment.233 The Burlington decision also held that an employee
could sue an employer for harassment, even if the employee suffered no
tangible job loss due to the misconduct.234
1. Burlington Industries, Inc. v. Ellerth
Kimberly Ellerth was a mid-level marketing assistant at Burlington Industries in Chicago from March 1993 to May 1994. 235 During her employment she claims that she “was subjected to constant sexual harassment
by her supervisor . . . Ted Slowik.”236 Slowik was a vice-president with the
“authority to make hiring and promotion decisions subject to the approval
of his supervisor.”237 The incidents of sexual harassment Ellerth described
included an occasion in the summer of 1993 when she was invited to a
hotel lounge by Slowik while on a business trip. 238 At that moment he
made remarks about her breasts and told her to “loosen up . . . I could
make your life very hard or very easy at Burlington.” 239 The second occasion occurred when she was being considered for a promotion.240 During
the interview Slowik told her she was not loose enough and then rubbed
her knee.241 After receiving the promotion he said “you’re gonna be out
there with men who work in factories, and they certainly like women with
pretty butts/legs.”242 The last occasion was when Ellerth called and
229.
230.
231.
232.
See Sherwyn & Tracey, supra note 126, at 18.
524 U.S. 742 (1998).
524 U.S. 775 (1998).
See Dominic Bencivenga, Looking for Guidance: High Court Rulings Leave
Key Terms Undefined, N.Y. L.J., July 2, 1998, at 5.
233. See Sherwyn & Tracey, supra note 126, at 15.
234. See Burlington Indus., Inc., 524 U.S. at 766.
235. See id. at 747.
236. Id.
237. Id.
238. See id. at 748.
239. Id.
240. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 748 (1998).
241. See id.
242. Id.
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Slowick told her he didn’t have time for her unless she told him what she
was wearing, and after calling again he replied “are you wearing shorter
skirts yet, Kim, because it would make your job a whole heck of a lot easier.”243 Ellerth quit her job and later sent her employer a letter stating that
she quit due to Slowik’s conduct.244
Despite rebuffing the advances, Ellerth never actually suffered any job
detriment because of the harassment.245 Although Ellerth was familiar
with the company’s sexual harassment policy, she never informed management about her supervisor’s misconduct. 246
Ellerth sued Burlington fifteen months after resigning. 247 The District
Court for the Northern District of Illinois granted summary judgment to
Burlington.248 Ellerth then appealed to the United States Court of Appeals
for the Seventh Circuit.249 The Seventh Circuit reversed the district court’s
ruling, finding that Ellerth had put forth enough evidence to pursue a sexual harassment claim against Burlington.250 The court ruled that Burlington
could be held liable for Slowik’s conduct 251 since it reasonably could be
concluded that Slowik had the ability to make the work environment hostile or abusive partly through the authority that was given to him by the
company.252 Burlington appealed this ruling to the Supreme Court. 253
The United States Supreme Court upheld the Appeals Court’s ruling that
Ellerth could proceed with her sexual harassment claim against Burlington.254 In its decision, the Court stated that an employee who refuses the
unwelcome and threatening advances of a supervisor, yet suffers no tangible job detriment, might still hold an employer liable. 255 The Supreme
Court did note, however, that an employer has a viable defense 256 if it exercises reasonable care to prevent these situations of sexual harassment
and provides employees with a program to report these incidents. 257 Alt-
243. Id.
244. See id.
245. See id.
246. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 748 (1998).
Burlington’s sexual harassment policy stated that “the company will not tolerate any form
of sexual harassment in the workplace.” Teresa Anderson, Supreme Court Clarifies Harassment Claims, SEC. MGMT., Aug. 1, 1998, at 81.
247. See Burlington Indus., Inc., 524 U.S. at 749.
248. See Ellerth v. Burlington Indus., Inc., 912 F. Supp. 1101, 1124 (N.D. Ill.
1996).
249. See Ellerth v. Burlington Indus., Inc., 123 F.3d 490, 492 (7th Cir. 1997).
250. See id. at 494.
251. See id.
252. See id.
253. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
254. See id. at 766.
255. See id.
256. See id.
257. See id.
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hough the Court did not rule on the facts of the case, it noted that Burlington could attempt to defend itself by proving that Ellerth did not comply
with the company’s sexual harassment policy.258
2. Faragher v. City of Boca Raton
Beth Faragher was employed as a lifeguard from 1985 to 1990 by the
City of Boca Raton, Florida.259 During this period of employment, Faragher was under the supervision of Bill Terry, Chief of Marine Safety, and
David Silverman, Marine Safety Lieutenant. 260 Terry and Silverman supervised every aspect of the lifeguards’ work and had complete authority
over them.261
Terry and Silverman had made offensive comments and uninvited sexual advances to Faragher and another lifeguard. 262 According to the two
women, Terry and Silverman had repeatedly touched and spoke to them in
an inappropriate manner over an extended period of time. 263 Although this
type of behavior existed, it was never reported or complained of to the city
management.264
In 1990, one of the female lifeguards quit her job and complained to city
management about the harassment to which she and other women, including Faragher, were exposed.265 Although the city claimed to be unaware of
the situation, they investigated the matter and reprimanded and disciplined
both Terry and Silverman.266 The city required them to choose between a
suspension without pay or the forfeiture of annual leave. 267 Faragher re-
258.
259.
260.
261.
262.
See id.
See Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998)
See id.
See id. at 781.
See id. at 782. According to court documents, Terry had repeatedly touched
the bodies of female lifeguards uninvited; would put his arm around Faragher with
his hand on her buttocks; once made contact with another female lifeguard in a
motion of sexual simulation; made crude and demeaning references about women;
had once commented disparagingly on Faragher’s shape; and during an int erview
of a female lifeguard which was eventually hired, asked her if she would take part
of the ongoing practice within the lifeguards of having sex with their male counte rparts. See id.
Silverman also took part in much of the same conduct. See id. Silverman had
once tackled Faragher and remarked that if not for an unattractive physical chara cteristic about her which he did not like, he would have had sexual relations with
her; he had pantomimed an act of oral sex; had told female lifeguards that he wa nted to have sex with them; commented on the lifeguard’s bodies; and made frequent,
vulgar remarks to and about women and sexual matters. See id.
263. See id. at 783
264. See id.
265. See Faragher v. City of Boca Raton, 524 U.S. 775, 783 (1998).
266. See id.
267. See id.
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signed in 1990 and sued the city in 1992.268
The United States District Court for the Southern District of Florida entered judgment for Faragher.269 The court found that the conduct by the
supervisors created a hostile work environment for which the city was liable due to the authority granted to Terry and Silverman by the city. 270 The
court also ruled that the harassment was such that the city had constructive
knowledge of the harassment.271 The city appealed to the Court of Appeals
for the Eleventh Circuit.272
The court of appeals reversed in part the decision of the district court. 273
The court found that the city could not be held liable for the supervisors’
conduct because the harassment occurred outside of the scope of employment and was not aided by the relationship with the city.274 In addition,
the court found that the city could not possibly have known about the harassment, and thus could not be held liable for it. 275
The Supreme Court reversed the lower court’s ruling and held that an
employer may be held liable in this circumstance.276 The Court also noted,
similar to the Burlington holding, that an employer can escape liability if it
exercises reasonable care to prevent and correct any sexually harassing
behavior and it shows that the employee failed to take advantage of corrective opportunities provided by the employer. 277 Here, the city had an antisexual harassment policy, but failed to distribute it to the beach employees.278 The Court also noted that the officials made no attempt to keep
track of the conduct of Terry and Silverman.279 Accordingly, the Court
held “as a matter of law that the City could not be found to have exercised
reasonable care to prevent the supervisors’ harassing conduct.” 280
3. Lawyers’ Reactions to the Impact of Oncale, Faragher, and
Ellerth on Sexual Harassment Law
Of the three major sexual harassment cases decided in 1998, Oncale was
268.
269.
See id.
See Faragher v. City of Boca Raton, 864 F. Supp. 1552, 1568 (S.D. Fla.
1994).
270. See id.
271. See id.
272. See Faragher v. City of Boca Raton, 76 F.3d 1155, 1157 (11th Cir. 1996).
273. See id. at 1168.
274. See id. at 1166 n.14.
275. See id. at 1167.
276. See Faragher v. Boca Raton, 524 U.S. 775, 809-10 (1998).
277. See id. at 807-08.
278. See id. at 807.
279. See id. at 808.
280. Id.
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the only one decided unanimously. 281 Although the Court sent a clear
message to employers that harassment between two men or two women is
still harassment,282 Oncale may be the most confusing of the three cases.283
What creates much of the confusion is the word “sex” in the “because of
sex” phrase contained in Title VII. 284 It seems as though “whenever the
word ‘sex’ is involved in a discussion about sexual harassment, people get
confused about what the term means.”285 For example, the term “sex”
could refer to the gender of the harasser or of the victim, it could refer to
the type of behavior in question, or it could be all or a combination of the
three.286
The Court held that Title VII showed “a congressional intent to strike at
the entire spectrum of disparate treatment of men and women in employment.”287 Accordingly, even though federal employment discrimination
statutes do not expressly prohibit same-sex sexual harassment, it is actionable as a form of sexual discrimination under Title VII. 288
Paul Salvatore, an employment lawyer and expert on sexual harassment
issues at Proskauer Rose L.L.P., believes that for most employers the Oncale decision “is just a blip on their radar screen because their policies
already prohibit harassment of any form . . . [therefore,] [i]t came as no
great surprise . . . to most employers of any size with any sophisticated
human resource function that this was the way the Supreme Court [would
rule].”289 He also explained that although this case is important, it is not
especially significant to those companies that already have same-sex harassment policies in place.290
Bob Hamilton, a human resources diversity consultant for E.I. du Pont
de Nemours and Co. (Dupont), expresses the same view. 291 He explained
that they have treated same-sex sexual harassment as inappropriate since
1988, before most companies had even acknowledged the term sexual harassment.292 He believes the only thing Oncale has done is to clarify the
281. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
282. See Oncale, 523 U.S. at 82
283. See Jennifer Laabs, What You’re Liable For Now, WORKFORCE , Oct. 1, 1998,
at 36.
284. See id.
285. Id.
286. See id.
287. Oncale, 523 U.S. at 78 (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64
(1986)).
288. See id. at 82.
289. Laabs, supra note 283, at 38.
290. See id.
291. See id.
292. See id. Dupont runs a training seminar for its employees called “A Matter
of Respect.” Id. This program involves video vignettes that emphasize non-
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issue of whether the sexual harassment is actionable under the law or not,
as opposed to earlier cases in which “it depended on the various district
courts as to whether it was actionable [under the law] or not.” 293
The majority of organizations are not as well prepared to deal with the
new laws as Dupont.294 Experts predict that there will be a lot of policy
tweaking along with training seminars over the next few years because of
the Oncale decision.295 Although many lawyers admit that they now know
that same-sex sexual harassment is covered, they are unclear as to the exact circumstances to which it applies.296 Many feel that the lower courts
will address that specific question over the next few years. 297
The key question answered in Burlington Industries, Inc. v. Ellerth was
whether employees could claim sexual harassment if they did not suffer
any tangible job detriment (i.e. a salary reduction, a less desirable job assignment, a denial of promotion, etc.).298 The Supreme Court affirmed that
when there exists a tangible job detriment, the employer’s liability is absolute.299 More interestingly, however, is that the Court held employers liable
for sexual harassment claims when there was no tangible job detriment.300
The message sent by the Court is clear: harassment is defined by the conduct of the harasser, not by what happens to the worker. 301
However, the Court fashioned an affirmative defense that an employer
can use to avoid liability. In order to avail themselves of this affirmative
defense, an employer must show that they had a clear policy against harassment and that the employee unreasonably failed to use it. 302 Whether
this affirmative defense will be a complete defense to liability, rather than
lessen the amount of damages the company is responsible for,303 is unclear
because the Court said the affirmative defense could be used to avoid liability or damages.304 Interpretation of this wording has been left for future
decisions in the lower courts.305
The advantage for employers is that the employee being harassed must
discriminatory behavior. See id. It shows workers how to treat each other on the
job, and also lets people know ‘“that whether its [happening between members of]
the same sex or not, [discriminatory] behavior is inappropriate.”’ Id. (alteration in
original) (quoting Bob Hamilton).
293. Id.
294. See id.
295. See Laabs, supra note 283, at 38.
296. See id.
297. See id.
298. See Burlington Indus., Inc., 524 U.S. at 747.
299. See id at 765-66.
300. See id.
301. See Laabs, supra note 283, at 38.
302. See Burlington Indus., Inc., 524 U.S. at 766.
303. See Laabs, supra note 283, at 38.
304. See Burlington Indus., Inc., 524 U.S. at 766.
305. See Laabs, supra note 283, at 41.
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tell someone with decision-making powers if he or she is experiencing
sexual harassment.306 With the old rules, the employee did not need to
notify a person with decision-making powers.307 The Ellerth decision
forces an employee who is being harassed to report the harassment, which
gives the employee a corresponding obligation to avoid harassment. 308
Thus, the responsibility has become more of a “two-way street.”309
Employers have been able to have hostile work environment cases dismissed by the courts310 because plaintiffs have to prove that a company
knew or should have known about the offensive behavior. 311 The Faragher
decision has changed this.312 Ellen McLaughlin, a lawyer specializing in
sexual harassment at the firm of Seyfarth, Shaw, Fairweather & Geraldson,
explains that there has been a significant shift in the standard of liability
“from a basically negligent standard – the ‘knew or should have known’
standard – to vicarious liability with an affirmative defense.”313
Employment law expert David E. Nagle314 believes that employers
should be aware that the cases do not actually change the definition of sexual harassment under the law,315 but rather expands the liability of lawyers
306.
307.
308.
309.
310.
311.
312.
313.
314.
See id.
See id.
See id.
Id.
See id.
See Laabs, supra note 283, at 41.
See Faragher, 524 U.S. at 808-10.
Laabs, supra note 283, at 41.
David E. Nagle is an employment lawyer with LeClair Ryan in Richmond,
Virginia.
315. See Anderson, supra note 246, at 84. The definition of sexual harassment
can include, but is not limited to, the following:
* Deliberate or repeated verbal comments of a sexual nature, suggestive remarks and offensive jokes.
* Unsolicited and unreciprocated physical contact such as touching,
pinching, patting, hugging and brushing against another person’s body.
* A display of offensive or erotic pictures.
* Sexual teasing, jokes, remarks or questions.
* Treating someone as a sex object rather than as a co -worker.
* Sexually suggestive looks or gestures such as leering, ogling and
staring.
* Focusing on a person’s physical attributes rather than his or her skill
and experience.
* Unwelcome verbal and physical conduct of a sexual nature const itutes sexual harassment when any of the following happens:
* Submission to such conduct is made an explicit or implicit term or
condition of an individual’s employment.
* Submission to or rejection of such conduct is used as the basis for
employment decisions.
* Such conduct unreasonably interferes with work performance, or cr eates an intimidating, hostile or offensive working environment.
James P.T. Fratt, Harassment: It’s Still a Problem; How Management Can Deal
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and limits the defenses they can bring to the table. 316 According to Nagle,
past businesses could defend themselves and avoid liability by proving
they were unaware of the harassment.317 Now, however, the employer’s
defense must consists of two parts: (1) the employer must have an effective sexual harassment policy in place; and (2) the employer must attempt
to prevent the harassment from occurring. 318 Nagle finds the second aspect
to be the most significant, he explains “[the second prong] is critical because it is the first time the Supreme Court has used the word ‘prevent’ as
necessary to the defense of a sexual harassment claim.” 319
Another important factor stemming from the decisions is that the failure
of the victim to report the harassment is no longer an adequate defense. 320
In some cases it is important to consider both the victim’s state of mind
and the reporting structure of the sexual harassment policy. 321 One example would be “a program requiring that reports be made to an immediate
supervisor might be considered inadequate in a situation where the victim
is being harassed by that supervisor and, therefore, prefers to remain silent.”322
Several management attorneys feel that the decisions provide very little
guidance for either preventing sexual harassment claims or for using the
affirmative defense.323 There is some worry that the rulings make summary judgment more difficult to prove.324 This difficulty might result in
employers being pressured to settle weak claims to avoid the costly expense of litigation.325 One primary concern is that employees will now
bring lawsuits “in the hopes of getting compensatory and punitive damages
where they suffered no tangible job detriment.” 326
Employers and their attorneys are also questioning the value of the affirmative defense.327 Some attorneys express concern that the plaintiffs
will ask the employers how often the policy was used and enforced in order to prove that the employees and management alike knew that the policy was merely a facade.328
with Sexual Harassment, COMM.WORLD, Apr. 14, 1998, at 20.
316. See Anderson, supra note 246, at 84.
317. See id.
318. See id.
319. Id.
320. See id.
321. See id.
322. Anderson, supra note 246, at 84.
323. See Dominic Bencivenga, Looking for Guidance: High Court Rulings Leave
Key Terms Undefined, N.Y. L. J., July 2, 1998, at 5.
324. See id.
325. See id.
326. Bencivenga, supra note 232, at 5.
327. See id.
328. See id. The Court had intended that “the existence of the policy and lack of
compliance will be enough, but there will be long arguments on that.” Id.
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Some experts believe that these cases help and are an improvement for
those employers who are legitimately seeking to end workplace harassment.329 One possible improvement in the law, and a bright light for employers, is that the Supreme Court has made it clear that an employer can
avoid liability by having an effective sexual harassment policy. 330 The
Court, however, failed to describe and define what would be acceptable as
an effective policy.331 Experts believe that the policy should:
(1) define sexual harassment;
(2) state that the company prohibits such conduct;
(3) provide a clear procedure for submitting claims, including the names of
individuals involved in the resolution process;
(4) state that those who complain or cooperate with an investigation will not
suffer retaliation; and
(5) be disseminated to all new employees when they join the company, reissued to all employees each year, and posted in a conspicuous location in the
workplace.332
After the 1998 Supreme Court holdings, an effective and enforceable
policy could constitute a company’s strongest defense when it comes to
sexual harassment suits,333 since it will demonstrate that a company takes
reasonable care in preventing sexual harassment in the workplace. 334 This
defense is available even if an employee fails to lodge a complaint because
the company would have been using reasonable care and the employee
would be acting unreasonably in not taking advantage of the preventative
measures that the company has made available.335
Employers are standing at a crossroads when it comes to sexual harassment.336 These three Supreme Court cases make it clear that this is a subject that should not be ignored and will not disappear. 337 Employers
should be prepared to be named in more lawsuits because it is easier for a
plaintiff to satisfy a prima facie case of sexual harassment. 338
Consequently, employers are quickly scrambling to review their policies
and modify them accordingly. 339 Many employers are implementing a
329. See Sherwyn & Tracey, supra note 126, at 16.
330. See id.
331. See id.
332. Id. at 17.
333. See id.
334. See id.
335. See Sherwyn & Tracey, supra note 126, at 17-18.
336. See Laabs, supra note 283, at 42.
337. See id.
338. See id.
339. See id.
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training program to educate their employees about sexual harassment. 340
Supervisors are “going back to [their] boss[es] and tell[ing] him or her
[that they] really need to put training about sexual harassment back in the
budget.”341
Gerald L. Maatman, Jr., a partner in the law firm of Baker & McKenzie
who specializes in sexual harassment, adds that if an employer wants to
“get ahead of the curve, be practical . . . and do the right thing, simply [sic]
do what the Supreme Court is telling [sic] [you to] do.” 342 If the employer
is still receiving complaints and is getting sued, there are still potential
arguments available that suggest the possibility of disposing of the case
quickly.343 If the court refuses to dismiss the case, “it simply goes to damages, and [the employer] will be in the best and strongest position possible,
should [the employer] have to face the jury and argue the case.” 344
Employers must also come to the realization that sexual harassment is a
behavioral and cultural problem, that should be dealt with on an individual
level as well as a cultural one.345 The research firm of Walker Information
conducted a national business integrity survey consisting of over 1,700
employees in medium to large-sized U.S. companies.346 When asked about
the top ethical problem within the organization, the overwhelming response was sexual harassment.347
The issue of sexual harassment forces people to examine human behavior and ask: why is there a need for an elaborate set of laws in order to be
respected in the workplace, and what would happen to us if the law did not
hold us accountable for our behavior?348 Jennifer Blalock, a specialist in
conflict resolution and workplace harassment prevention, believes that
people must learn to communicate with each other. 349 She explains that
‘“[a] policy is useless unless people use it. Most research indicates that a
small fraction of employees never say or do anything about harassing behavior. It’s best to intervene and provide solutions before they escalate into
full-blown, formal complaints.”’350
The bottom line is that employers should understand and pay attention to
sexual harassment.351 If they did not pay attention to the issue before, then
the Supreme Court has just given them three strong reasons why they
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
351.
See id.
Id.
Laabs, supra note 283, at 42.
See id.
Id.
See id.
See id.
See id.
See Laabs, supra note 283, at 42.
See id.
Id.
See id.
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should now.352 Even if a company feels they have a good grasp on the
issues, they should rework their policy and procedures to ensure that they
comply with the new rulings. 353
V. CONCLUSION
Throughout the first six months of 1998, the Supreme Court issued three
landmark decisions, which will continue to have great implications on the
issue of sexual harassment in the workplace. The first of three, Oncale,
has finally given clarity to the issue of same-sex sexual harassment.
Whereas lower courts had difficulty in handling these cases due to lack of
guidance, the Supreme Court has now given them a path to follow. A male
is now allowed to sue another male for sexual harassment under Title VII.
Furthermore, the sexual advances do not have to be tinged with such sexual overtones as to make the harasser appear to be homosexual. A straight
male may sexually harass another straight male and be found liable under
Title VII.
The Faragher and Burlington decisions show that liability runs straight
to management. It would seem that these rulings have an adverse effect on
employers. The result might be that sexual harassment suits will explode
from all directions and from any member of the workforce. Seemingly, the
worst part for employers is that they could be held strictly liable for any
harassment. A punishment for the alleged harasser will not fix any problems when a victim decides to sue the corporation. Too harsh a penalty
and an employer can be sued by both the harasser and the victim. However, even with all these factors, employers who truly understand the implication of the court decisions have time to evaluate their policies. Overall,
these three decisions can prove to be beneficial for the employers as well
as the employees.
Even with the remaining unsolved issues, the rulings provide employers
with a more coherent and focused approach to handling same-sex sexual
harassment claims. The Court has given employers reasonable guidelines
that most employers can proactively implement in order to protect themselves from liability. Prevention is the key for employers in the future as
there is no penalty for being overly conscientious and overly specific when
it comes to sexual harassment policies.
An employer who wants to avoid liability should know and understand
the following:
A. The conduct that constitutes sexual harassment is quite varied. Employers should be on the lookout for:
1. verbal harassment;
352.
353.
See id.
See Laabs, supra note 283, at 42.
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2. physical harassment, which is any interference, from hugging
and patting to impeding or blocking someone’s movement;
3. visual forms of harassment, which can be anything from a
poster to a drawing on a piece of paper; and
4. demand for sexual favors – the most recognizable form of harassment.
B. The differences between hostile work environment sexual harassment and quid pro quo sexual harassment.
C. Liability runs from any supervisor or agent of the corporation sexually harassing an employee to an employee harassing an equal employee.
After understanding what sexual harassment is, when it occurs, and who
is responsible for it, an employer should take proactive measures to ensure
that the behavior will not be tolerated. The employer should institute a
training program for newly hired employees, followed by periodic training.
Educated employees and employers can make the work environment run
more smoothly. The employee should also be given a copy of the sexual
harassment policy of the company during the initial training. It is essential
that a company has a written anti-harassment policy and strictly adheres to
it. A policy that just sits in a closet will be of no help to anyone involved,
especially not the employer once a suit is brought.
If the preventative measures taken by an employer fail to work and
someone is sexually harassed, employers need not panic. Prompt remedial
action should be taken by the employer to extinguish the problem. There
are a variety of ways to achieve this, and an employer should attempt to
choose a method that will leave all three parties satisfied. It is important to
fully investigate all claims and to be fair in punishing the harasser, if the
harasser is found to be violating the company’s policy.
Employers should not be discouraged by the new rulings of the Supreme
Court. In fact, the rulings should be looked upon by employers as an opportunity. It has given them guidance in implementing new policies and
has given them their best defense against liability.
Oncale was thought to be a great victory for employees. Employers had
cringed at the fact that same-sex sexual harassment claims could be
brought against them. Then Burlington and Faragher came along and told
employers that they are liable for what their employees are doing, even
when they do not know about it. Once again, employees cheered and employers cringed. The tables, however, have turned. At first blush it
seemed that employers were between a rock and a hard place. After serious
investigation into the decisions, however, employers find themselves once
again with the upper hand.
Miguel Nieves