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This Day in Labor History: March 4, 1998

[ 33 ] March 4, 2013 |

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.

Comments (33)

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  1. Joe says:

    Justice Antonin Scalia, writing the opinion

    Priceless in itself.

    • JohnR says:

      Indeed. Darned activist judge. Good thing we now have that fine, upstanding originalist Justice Antonin “Vaffanculo” Scalia on the Court to prevent this sort of judicial over-reaching.

  2. Shakezula says:

    Um. How much more “explicitly sexual” does it get than placing one’s dick on another person, sodomy with a soap bar and threats of rape?

    Answer: Not bloody much.

  3. Ken Houghton says:

    On March 4, 1998, the U.S. Supreme Court ruled for the plaintiff in Oncale v. Sundowner Offshore Services, codifying same-sex sexual harassment in the workplace into American jurisprudence.

    There’s something wrong with this sentence. Or, at least, it doesn’t lead the reader to “the court decided same-sex harassment was unconstitutional.”

  4. Josh G. says:

    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.

    In the Oncale case, the conduct went far beyond making a worker uncomfortable; it involved an actual sexual assault.

    You’re right that concerns over the scope of sexual harassment law have been raised from both liberal and conservative perspectives. I’m willing to dismiss the right-wing view (that employers should be able to impose any conditions they want in a “free market”) out of hand, but I’m not so willing to overlook all other concerns. There have been cases where sexual harassment policies were applied in a ridiculously overbroad fashion to ban conduct that most people would consider normal and acceptable.

    I think the reasons for this are twofold: first, the fact that the rise of feminist sexual ethics happened to coincide with the decline of the union movement, and secondly, that there is really no controlling legal authority from Congress on this issue.

    Regarding the first issue, the weakening of worker power means that corporate policies on sexual harassment tend to be made by risk-averse lawyers or HR representatives, with little or no input from rank-and-file employees. Therefore, the policies often go much further than is required by law, banning any sort of “fraternization” among employees, and spurring misconceptions such as the notion that it’s sexual harassment to ask a co-worker out on a date. It would be much harder for corporations to impose these kind of rules if workers still had a seat at the table, since pretty much no one, male or female, actually wants to be restricted in this way.

    On the second issue, part of the problem is that Congress never actually passed a law specifically banning sexual harassment in the workplace. They passed a law banning gender discrimination, some feminist legal scholars came up with theories that sexual harassment was really a form of discrimination against women, and courts accepted these theories. I can understand why they did this, since there really was a problem with harassment a couple of decades ago and it really was holding women back at work. Unfortunately, this means it’s impossible to resort to legislative history or legislative intent to figure out what is sexual harassment and what is not, so courts are pretty much making it up as they go. This, in turn, spurs overly cautious policies on the part of businesses, colleges, and so forth, which can lead to a backlash against harassment law. Had Congress actually passed a specific law on sexual harassment, it could spell out not only what is sexual harassment, but what is not, and hopefully put an end to the overreach.

    • Anon21 says:

      I can understand why they did this, since there really was a problem with harassment a couple of decades ago and it really was holding women back at work.

      I would hope this is just careless language, but this seems to imply that harassment isn’t a problem right now, or at least not one that hold women back at work. Clearly sexual harassment continues to be a serious problem in American workplaces, and it does continue to impede women’s opportunities to hold jobs.

      I’m slightly sympathetic to your concern about employers enacting overbroad policies that purport to deal with sexual harassment, while really proscribing a broad range of behaviors that the employer doesn’t think conducive to its bottom line for one reason or another. I really doubt that Congress enacting a statute that more precisely defines what sexual harassment is would change anything at this point. Employers have the power to impose these conditions of employment, they like quiet lives, and they would not likely be tempted to pare back overbroad policies just because the law allowed them to do so.

      • JL says:

        This.

        Sexual harassment has lessened from a few decades ago, but it did not go away. In certain industries it hasn’t improved much at all. I have a friend who’s a ship’s engineer on commercial ships. The stories she tells are hair-curling…and I’m in computer science, which might be one of the most sexist white-collar fields out there (and have been sexually harassed before).

        The video game industry, which I’ve had a number of friends work in, seems to be another commonly problematic one, whether you’re on the CS/software side of things or not.

    • witless chum says:

      When the Dems control congress, it seems like the could be more aggressive when passing laws on things like this. Writing supreme court decisions on things like sexual harrassment or abortion seem like it’d be good policy, for the reasons you outline, and good politics because Republicans would be forced to try to dismantle them more openly when they controlled congress.

    • sharculese says:

      the rise of feminist sexual ethics

      Why do I suspect this is the dreaded legal principle of ‘keep your deep thoughts on what is and is not boner-inducing to yourself unless someone asks’

    • sharculese says:

      Also, too:

      They passed a law banning gender discrimination,

      no.

      because of such individual’s race, color, religion, sex, or national origin; or

    • Pamoya says:

      There have been cases where sexual harassment policies were applied in a ridiculously overbroad fashion to ban conduct that most people would consider normal and acceptable.

      I would be interested in getting cites to any of these cases; I don’t think many if any exist. I do agree that most employers’ sexual harassment policies forbid far less serious behavior than a court would consider to be a hostile work environment. I think this is a problem for a slightly different reason: now the public perception is that you can get sued for staring lewdly at a co-worker, and it trivializes the horrible sexual harassment that goes on in some workplaces.

      I wouldn’t have a problem with a statute that focuses specifically on sexual harassment, but I think it is also important to acknowledge that sexual harassment is gender discrimination. In classic cases like Jenson v. Eveleth Taconite the point of the harassment was to demonstrate to women employees that they didn’t belong there.

  5. Brautigan says:

    Kinda off on a tangent here, but I was struck by this:

    In 1991, Joseph Oncale got a job working as a roustabout on an oil rig for $7 an hour.

    These used to be good-paying union jobs. I worked as a roustabout in 1981 for around $12/hour. At that time, the company was recruiting people to work on the ocean rigs, with the promise of doubling the land-based pay.

    What the hell happened? Did the oil patch unions all get busted?

    • Erik Loomis says:

      I don’t know much about this industry, but this was the period when the Oil, Chemical, and Atomic Workers, one of the most progressive unions in the AFL-CIO was getting decimated and eventually had to merge with the Steelworkers. I don’t know to what extent they had successful organized platform workers.

    • Bruce Vail says:

      Nothing in Erik’s posting suggest Oncale was a roustabout.

      Most likely he was a food service or custodial worker, but $7 still seems awfully low.

      • Roger says:

        Second paragraph, first sentence:

        In 1991, Joseph Oncale got a job working as a roustabout on an oil rig for $7 an hour.

        • Bruce Vail says:

          Ooops, sorry. I missed that.

          My guess is there is some error here. Even by 1991 standards, $7 an hour is ridiculously low for offshore roustabout work, as Brautigan testifies.

  6. BlueLoom says:

    (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)

    You might check with Al Blumrosen at Rutgers Univ Law School to see if he remembers the history of this. He and the late Peter Robertson wrote the first round of regs for Title VII. Robertson died in 1997. He saved all of the many drafts of these initial regs, and his family donated them to the Howard University Law School library after his death. The library’s goal was to digitize all of these documents and make them searchable. I don’t know if that ever happened.

  7. Joshua says:

    That Rosen article is staggeringly stupid. I have to wonder though – does Jeffrey Rosen regret writing that article? Has his career been affected by that article at all?

  8. [...] February 13, 1865–Sons of Vulcan win nation’s first union contract. March 4, 1998–Supreme Court rules in Oncale v. Sundonwer Offshore Services. Same-sex sexual harassment. March 7, 1932–River Rouge march and repression. March 23, 1974–Coalition of Trade [...]

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