NCJ Number
205194
Journal
Crime Victims Report Volume: 8 Issue: 1 Dated: March/April 2004 Pages: 7-8,13,14
Date Published
March 2004
Length
4 pages
Annotation
This first in a series on same-sex sexual harassment and its place in the legal world reviews recent news articles on same-sex harassment generally and same-sex sexual harassment and then summarizes relevant court cases that have evolved out of Title VII actions.
Abstract
The cases of same-sex harassment in the news include incidents of high school hazing of male students, the hazing of female high school students, and an assault stemming from same-sex harassment between firefighters at their place of employment. Claimants of harassment in the employment setting can file suit under Title VII. Claimants of harassment in the school setting can file suit under Title IX. This article focuses on cases brought under Title VII, which prohibits an employer from fostering conditions under which employees are harassed because of their race, color, religion, sex, or national origin. Three categories of sexual harassment cases have evolved out of Title VII actions: qui pro quo, hostile work environment, and gender stereotyping. Under the category of qui pro quo cases, the first such case involved the termination of a female employee for refusing the sexual advances of her supervisor. The district court held that the requirement to provide sexual consideration as a condition of employment creates an artificial barrier to employment applied to members of one sex but not the other, thereby constituting sex discrimination. Under the category of cases that have focused on hostile work environment, the courts have held that Title VII prohibits severe or pervasive harassing conduct based on sex as determined from the perspective of a reasonable person. Regarding sexual harassment based on gender stereotyping, the court held in Price Waterhouse v. Hopkins (1989) that sex discrimination was involved in the failure to promote a woman because she failed to exhibit the qualities of a stereotypical female. Regarding same-sex sexual harassment claims under Title VII, the first predominant case was heard by the U.S. Supreme Court in Oncale v. Sundowner (1998). In this case Oncale alleged that he was harassed by coworkers and his supervisor on an offshore oil rig when he was restrained while one employee placed his penis on Oncale's neck, when he was threatened with homosexual rape, and when a bar of soap was forced into his anus in the shower. No remedial actions were taken when Oncale complained to supervisory personnel. The Court held that employment discrimination under Title VII protects men as well as women, that a male can discriminate against another male, that Title VII does not categorically exclude same-sex harassment claims, and that Title VII prohibits conduct so severe and pervasive as to create an objectively hostile or abusive work environment based upon the totality of the circumstances. The Court's ruling in Oncale spawned numerous conflicting rulings in the lower courts. This article summarizes court rulings in relevant cases in the First Circuit, Second Circuit, Fourth Circuit, Seventh Circuit, Eighth Circuit, Ninth Circuit, Eleventh Circuit, and the District of Columbia.