On March 4, 1998, the U.S. Supreme Court ruled for the plaintiff in Oncale v. Sundowner Offshore Services, deciding that Title VII of the Civil Rights Act of 1964 applied to same-sex sexual harassment, and creating a landmark expansion of judicial oversight into the workplace.
In 1991, Joseph Oncale got a job working as a roustabout on an oil rig for $7 an hour. Employed by Sundowner Offshore Services, Oncale was assigned to a Chevron USA rig in the Gulf of Mexico. While on board, Oncale was subjected to severe sexual harassment by his supervisor, John Lyons, and his fellow workers Danny Pippen and Brandon Johnson. Lyons placed his penis on Oncale’s neck and arm. On October 25, 1991, Lyons also publicly sodomized Oncale with a bar of soap in the rig showers as Pippen held him down. Lyons also threatened to rape him. Today, most of us would no doubt consider the soap incident rape, but throughout the case, there seems to have been a steady distinction between the two incidents.
Oncale stood up for himself through this entire process. He complained to his employer, who basically said he was gay (in fact, Oncale was heterosexual) and did nothing. Oncale quit, requesting that his pink slip state that he left because of sexual harassment and verbal abuse. In his deposition, Oncale said, ““I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”
With support from the American Civil Liberties Union, Oncale then filed a suit against Sundowner in the U.S. District Court for the Eastern District of Louisiana, saying his rights were violated under Title VII of the Civil Rights Act of 1964. But there was no precedent to applying Title VII to same-sex harassment. Title VII forbids discrimination on the basis of race, color, religion, sex, or national origin by all employers with more than fifteen employees (indeed, if your workplace has less than 15 employees, Title VII does not apply. I don’t know anything about the history of this. If anyone does, let me know). Title VII does not explicitly cover same-sex issues, as one would expect in 1964. The District Court ruled in favor of Sundowner. Oncale then appealed to the Fifth Circuit Court of Appeals, which also ruled for the defendant.
The Supreme Court overruled the Fifth Circuit with unanimity based on a previous decision that held Title VII “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” It decided that Title VII’s protections against workplace harassment applied to same-sex relationships, even if those relationships were not explicitly sexual. Sundowner argued that applying Title VII to this case would create government interference into the workplace in an unprecedented manner that would serve “as a general civility code for the American workplace.” Justice Antonin Scalia, writing the opinion, rejected this, drawing a limited application to the decision: “the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.”
Not only did Oncale set a precedent for same-sex sexual harassment, but it also expanded the legal definition of sexual harassment to include something broader than sexual desire, so long as it makes a worker uncomfortable on the job. The implications of this did not make many commenters comfortable. Here’s a Jeffrey Rosen piece from The New Republic expressing his concern that the courts were equating sexual expression at the workplace with sexual harassment and urging the Court to stay out regulating workplace behavior. I’m guessing Rosen now really wishes he hadn’t written that. Reading Rosen’s piece sixteen years later shows how long the road has been in the fight against sexual harassment in the workplace. The late 20th century workplace was a space where power was used for sexual advantage and intimidation. Many men thought of making sexual advances on women almost as a right. Today, we slightly laugh about that while we watch the ridiculously lewd office behavior in Mad Men, but of course those sorts of things happened in any number of ways in any number of workplace settings. Creating and enforcing protections for women was controversial and contested in the 1990s. Extending such protections for men at a time when the anti-gay movement was as its peak seemed even more unlikely.
This is the 53rd post in this series. The series is archived here.