Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)

 

Oncale v. Sundowner Offshore Services is an important case in the development of employee protections from sexual harassment, same-sex discrimination, sexual orientation discrimination, and sexual identity discrimination. Specifically, Title VII of the Civil Rights Act of 1964 — the primary federal law barring sex-based discrimination in employment — prohibits workplace discrimination and harassment that is “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). This language plainly bars an employer from treating male employees better than female employees, or vice versa, and plainly bars employers from making sexual activities a condition of employment. But the text of Title VII does not specifically explain whether this “because of … sex” language also bars sexualized harassment by a straight employee against another straight employee of the same sex, or whether it bars discrimination against an employee because of his/her/their sexual orientation or gender identity.

Summary

Oncale specifically concerns the meaning of the phrase “because of…sex” in the context of same-sex harassment among straight male employees. The central decision in Oncale was that Title VII’s rule against discrimination “because of… sex” applied to sexualized harassment in the workplace between members of the same sex, even when the conduct at issue is not motivated by sexual desire. This decision was a precursor to later cases applying that same “because of … sex” language in the context of discrimination based on sexual orientation and gender identity.

Facts and Procedural Background

Oncale worked for Sundowner on an oil rig in the Gulf of Mexico. He was part of a crew of eight men. On several occasions, certain crew members subjected Oncale to “sex-related, humiliating actions … in the presence of the rest of the crew … physically assaulted Oncale in a sexual manner, and … threatened him with rape.” 523 U.S. at 77. Oncale complained to his supervisors about the behavior, but they allowed it to continue. Oncale eventually quit, and requested that his personnel file reflect that he left “due to sexual harassment and verbal abuse.” Id. Apparently all the crew members were straight, so presumably their actions were not motivated by sexual desire. Id. at 79.

Oncale sued Sundowner, claimed that the harassing behaviors directed against him by his straight male co-workers constituted discrimination “because of … sex” under Title VII. The District Court granted summary judgment for Sundowner, dismissing the case on the grounds that Oncale, being male, had no cause of action under Title VII for harassment by male co-workers. The Fifth Circuit affirmed. 83 F.3d 118 (1996).

Supreme Court Decision: Same-Sex Discrimination is Action Under Title VII

In a 9-0 decision written by Scalia, the Supreme Court reversed, holding that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court’s reasoning here was that (1) under Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682 (1983), Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, and (2) under Castaneda v. Partida, 430 U. S. 482, 499 (1977), in the related context of racial discrimination in the workplace, the Court had rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Castaneda, 430 U.S. at 499. It therefore follows that males might discriminate against other males.

The Court’s Rationale

The Court further explained there was no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of … sex” just because the victim and the harasser are of the same sex. Scalia explained that while male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII … Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

The Court therefore held that same-sex harassment is actionable under Title VII, so long as the conduct meets the well-established elements of a sexual harassment claim: (1) that the conduct at issue was “not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex’ and (2) that the conduct “severe or pervasive enough to create an objectively hostile or abusive work environment[.]” Id. at 81.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Scalia further pointed out that in all harassment cases, including same-sex cases, the “severe or pervasive” inquiry requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale at 81. For example, “[a] professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Id. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 81-82.

The Court therefore rejected Sundowner’s argument that recognizing liability for same-sex harassment would transform Title VII into a “general civility code” for the American workplace. Scalia explained that Title VII is directed at discrimination “because of” sex, not merely “conduct tinged with offensive sexual connotations.” Id. at 81. The Court also pointed out that Title VII does not reach “genuine but innocuous differences” in the ways men and women routinely interact with members of the same, and the opposite, sex. Id.

Analysis and Significance

In short, Oncale is important because it held that Title VII’s protection against workplace discrimination “because of… sex” applies to sex-based conduct between members of the same sex, even in the absence of sexual desire. This was an important early decision in the development of the rights of employees to be free from workplace discrimination because of their sexual orientation or gender identity. For example, in 2015 the EEOC cited Oncale as part of its rationale for issuing an agency decision that Title VII bars sexual orientation-based employment discrimination. Oncale therefore laid the foundation for analyzing same-sex harassment and sex-based harassment without “sexual desire” by indicating that any discrimination based on sex is actionable if it places the victim in an objectively hostile or abusive work environment, regardless of the victim’s or harasser’s gender or sexual preference.

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