by Mary-Kathryn Zachary, J.D.
It is common knowledge that sexual harassment
is against the law and can lead to substantial liability for companies
and for individual managers. However, it is important to note that
according to a recent Supreme Court ruling, same-sex harassment
is also illegal, as covered by Title VII of the Civil Rights Act
of 1964.
Before the Supreme Court Ruling, managers did
not have any clear guidelines on the issue, because courts handed
down conflicting rulings:
- Some said, NO: same-sex claims can never be brought;
- Others have allowed such claims, but only if the harasser was
homosexual, and thus presumably motivated "because of sex."
- Still others have concentrated on the conduct involved and held
that such claims are always allowable.
The Supreme Court recently resolved the controversy,
in the case of Oncale v. Sundowner Offshore Services, unanimously
reversing a trial court's and circuit court's decision that same-sex
harassment was not actionable under Title VII.
The essential points made by the Supreme Court
in Oncale are as follows:
- The language of Title VII of the Civil Rights Act of 1964 prohibits
discrimination against both men and women because of sex. Any
workplace conduct involving humiliation, ridicule, or insult that
is directed to an employee, male or female, because of sex may
be unlawful if it affects the employee's working conditions and
creates an abusive environment.
- Same-sex harassment may constitute discrimination because of
sex. Although same-sex harassment was not one of the evils that
Congress sought to address when it passed Title VII, the language
of the act covers such conduct.
- To be unlawful, conduct does not have to be motivated by sexual
desire; conduct disadvantageous to members of one sex motivated
by hostility may also be prohibited harassment.
- The gender and sexual orientation of the harasser and the victim
are not determinative of whether or not unlawful sexual harassment
has occurred; thus, both homosexual and heterosexual harassment
alike are unlawful.
- Not all harassment is unlawful-just that constituting discrimination
because of sex. The Supreme Court attempted to address the fears
of companies and employees that any comment might subject them
to liability by acknowledging that office flirtations and roughhousing
or teasing do not necessarily constitute sexual harassment.
- The test to be used in evaluating the conduct is whether the
behavior would be so objectively offensive as to change the workplace
as viewed from the perspective of a reasonable person in the victim's
situation. A manager trying to decide if sexual harassment has
occurred should look at the situation from the victim's perspective,
not from his or her own perspective.
- The context in which the conduct occurred is of critical importance
in deciding if the act has been violated. Conduct which might
be unlawful in one situation, might be perfectly innocent in another.
Conclusion
Although more clear-cut rules would be easier
to administer, the advantage of the Supreme Court's ruling is that
it takes into account differences between workplaces, individuals
and situations, and makes it clear that in all cases, common sense
should prevail.
Mary-Kathryn Zachary is associate professor
of business administration at the State University of West Georgia,
Carrolton, Georgia.
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