Harassed Or Hazed?

By John Cloud

Little more than a decade ago, the Supreme Court had said nothing yet about sexual harassment, and a court stuffed with Ronald Reagan's and George Bush's appointees might have been expected to maintain the silence. But since 1986, the court has ruled three times on the issue, and every time, feminists have rejoiced. Last week that happy chorus was joined by men and women alike who feel harassers and their victims aren't always members of the opposite sex.

In a unanimous decision written by one of the most conservative Justices, Antonin Scalia, the court said men who sexually harass other men (and women who harass women) are discriminating against them and thus breaking a law, the 1964 Civil Rights Act. It was only 12 years ago that the court ruled for the first time that sexual harassment--a vague term that most often includes unwelcome come-ons and touching--amounted to discrimination. That decision was seen as an advance for women suffering abuse from lecherous bosses and co-workers, and indeed nearly 9 of every 10 sexual harassment claims are brought by women. But Scalia last week pointed out that the law has always been gender-blind: "Sexual harassment of any kind," he wrote, is illegal.

The ruling reinstates the case of oil-rig worker Joseph Oncale--earlier thrown out by an appeals court--against Sundowner Offshore Services, a Houston firm that drills for oil in the Gulf of Mexico. Oncale had worked on offshore rigs before (and does today), but says he never encountered such abusive treatment as when he signed on with Sundowner in 1991. He claims, for instance, that three male co-workers held him down in a shower and shoved a bar of soap between his buttocks. One of them threatened rape, he says. He quit and later was found to have posttraumatic stress.

Brutal, yes. But illegal sexual harassment? Even after the Supreme Court's ruling, Oncale might not convince a jury that Sundowner and its men discriminated against him. Scalia's brief opinion merely allows the possibility for the first time. Sundowner attorney Harry Reasoner says his clients deny the shower incident. They admit to roughhousing with Oncale, but they didn't single him out for special abuse, Reasoner says. "All males who go onto an offshore platform are subject to a kind of hazing." Reasoner also points out that Oncale could have brought state assault charges against the men but went for a federal suit that could yield a fatter award.

Oncale will have to convince a jury that he was discriminated against "because of" his gender. That's what the Civil Rights Act says. Scalia noted that behavior with mere "sexual content" isn't necessarily illegal. There's no law against acting like a sex-crazed boor--so long as one acts that way to men and women alike. The court isn't creating any "general civility code," Scalia noted.

Having said what it doesn't mean, however, the high court left wide open what it does mean to discriminate "because of" gender. A lower court had held that male-on-male harassment counts as discrimination only if the harasser is gay, since the gay harasser is clearly choosing his victim because of his gender. And Scalia agreed that homosexuality could be contributing evidence. This part of the ruling could lead to investigations that "out" accused harassers to prove discrimination.

But homosexuality is not the only factor, the Justice said. Same-sex bias might spring from "general hostility" to one's own gender. And motivations aside, it's enough to show that the accused "treated members of both sexes in a mixed-sex workplace" differently. Says UCLA law professor Eugene Volokh: "If you can show that they would never do this sort of thing to a woman, that's enough."

Reasoner says Oncale can't prove his crewmates would never have similarly abused women. "What women? There are no women on the rigs," he says. "It would just be a speculative thing." Oncale, who is married and has two children, has said he is "far from gay." Reasoner says his clients are also straight and denies they created a climate of "general hostility" toward men.

The Oncale decision is the first of four sexual harassment cases now before the court. In two of the cases, the court will determine the extent to which employers are liable for harassment perpetrated by nonmanagement employees. In another case, the court will decide whether a woman threatened with retaliation for refusing a sexual advance--but never actually punished--can go ahead with her lawsuit.

Last week most lesbians and gays praised Scalia's ruling--a first for the Justice--for treating same-sex harassment no differently from that between a man and a woman. But some scholars were worried that the court's insistence on showing a disparity in treatment of men and women could have a perverse effect: "If you see a sexual harassment claim coming, you can just start abusing women too," says Deborah Epstein, who teaches law at Georgetown University. And that could inspire a new legalism: equal-opportunity harasser.