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In its recent decision in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court presented a unified front on a hotly debated issue with its unanimous holding that Title VII of the 1964 Civil Rights Act prohibits same-sex sexual harassment under the same legal standards as those governing claims of sexual harassment by a member of the opposite sex.

Oncale’s Complaint
Joseph Oncale worked as a roustabout for Sundowner Offshore Services on an oil platform in the Gulf of Mexico. When he was harassed, physically assaulted in a sexual manner, and threatened with rape by several members of his crew, Oncale complained to his supervisor. The complaints produced no result, so Oncale quit, requesting that his pink-slip state that he “voluntarily left due to sexual harassment and verbal abuse.” Oncale sued Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. However, the district court held that, as a male, Oncale had no cause of action under Title VII for harassment by male coworkers. The United States Court of Appeals for the Fifth Circuit affirmed.

In a compact, seven-page opinion, Justice Scalia explained that Title VII’s prohibition of discrimination “because of… sex” protects men as well as women. In addition, in the context of racial discrimination, the Supreme Court has consistently rejected the notion that an employer will not discriminate against members of his own group. These two ideas taken together served as the basis for the Court’s resounding holding: “If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination because of… sex’ merely because the plaintiff and the defendant… are of the same sex.”

Title V11 is Not a Civility Code
The Court rejected the notion that providing a cause of action for same-sex sexual harassment would transform Title VII into a general workplace “civility code.” Stressing that the statute requires proof of discrimination based on sex, the Court emphasized that Title VII has never protected against all verbal or physical harassment in the workplace. The Court sent a clear message-this decision does not make it any easier to prove a sexual harassment claim.

To prevail in a sexual harassment claim, the plaintiff still must establish an inference of discrimination based on sex. The Court recognized that in male-female sexual harassment situations, courts and juries easily draw this inference, because the challenged conduct usually involves proposals of sexual activity, and “it is reasonable to assume those proposals would not have been made to someone of the same sex.” In the case of same-sex harassment, the Court asserted that, under the same logic, one could find an inference of discrimination if “there were credible evidence that the harasser was homosexual.”

However, evidence of sexual attraction is not always required as the challenged conduct on its face may reveal sex specific or derogatory terms “to make it clear that the harasser is motivated by a general hostility” toward women or men in the workplace. Also, the plaintiff can use comparative evidence to show that the employer treats employees differently based on sex. Regardless of which type of evidence the plaintiff uses, he or she must prove that the challenged conduct was more than just different or offensive, but actually constituted “discrimination… because of… sex.”

In addition, plaintiffs must prove that the conduct is so severe and pervasive as to alter the conditions of the victim’s employment. The Court expected that this severity requirement will continue to limit the number and types of claims that are brought under Title VII. Because the severity of the harassment is judged from the perspective of a reasonable person in the plaintiff’s position, the Court called on courts and juries to use “common sense and sensitivity to social context” when evaluating claims. By way of example, the Court explained that a football coach can slap a player’s buttocks without incident, but the same conduct would be abusive toward that coach’s male or female secretary.

Significance The Oncale case officially opens the door to same-sex sexual harassment claims, although they have been recognized by most Connecticut courts for some time. The Supreme Court provided little guidance on how to evaluate same-sex claims, perhaps precisely to emphasize the point that they should be treated exactly like any other claim of sexual harassment. Most employers already have anti-harassment policies in place that specifically prohibit same-sex harassment, so this decision should not require most Connecticut employers to modify their policies or otherwise change the way they handle harassment claims.