Instantie: Supreme Court of the United States, 4 maart 1998


Supreme Court of the United States


Oncale werd mishandeld en seksueel geïntimideerd door zijn mannelijke
collega’s. Alhoewel hij deze voorvallen heeft gemeld aan zijn chef, werd er
niet tegen opgetreden. Oncale stapte daarop naar de rechter. De lagere
rechter verklaarde de zaak niet ontvankelijk omdat “same-sex” seksuele
intimidatie niet valt onder Titel VII (non-discriminatie wet in de VS) welke
discriminatie op grond van sekse verbiedt.
Unaniem beslist Supreme Court dat onder titel VII ook seksuele intimidatie
valt als beide partijen van dezelfde sekse zijn.
Het Hof oordeelt dat van belang is of leden van het ene geslacht worden
blootgesteld aan bepaalde nadelen of condities binnen het werk in
vergelijking met leden van het andere geslacht. Het Hof zegt daarbij tevens
dat het seksueel intimiderende gedrag niet hoeft plaats te vinden vanuit een
seksueel verlangen om inbreuk te maken op de wet. Maar bewijstechnisch ligt
het in het ene geval toch veel moeilijker dan in het andere.

Volledige tekst

Justice SCALIA delivered the opinion of the Court.
This case presents the question whether workplace harassment can violate
Title VII’s prohibition against “discriminat[ion] .. because of… sex,”,
when the harasser and the harassed employee are of the same sex.

I The District Court having granted summary judgment for respondent, we must
assume the facts to be as alleged by petitioner Joseph Oncale. The precise
details are irrelevant to the legal point we must decide, and in the interest
of both brevity and dignity we shall describe them only generally. In late
October 1991, Oncale was working for respondent Sundowner Offshore Services
on a Chevron U.S.A., Inc., oil platform in the Gulf of Mexico. He was
employed as a roustabout *1001 on an eight-man crew which included
respondents John
yons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and
Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several
occasions, Oncale was forcibly subjected to sex-related, humiliating actions
against him by Lyons, Pippen and Johnson in the presence of the rest of the
crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner,
and Lyons threatened him with rape. Oncale’s complaints to supervisory
personnel produced no remedial action; in fact, the company’s Safety
Compliance Clerk, Valent Hohen, told Oncale that
yons and Pippen “picked [on] him all the time too,” and called him a name
suggesting homosexuality. Id., at 77. Oncale eventually quit – asking that
his pink slip reflect that he “voluntarily left due to sexual harassment and
verbal abuse.” Id., at 79. When asked at his deposition why he left
Sundowner, Oncale stated “I felt that if I didn’t leave my job, that I would
be raped or forced to have sex.” Id., at 71. Oncale filed a complaint against
Sundowner in the United States District Court for the Eastern District of
ouisiana, alleging that he was discriminated against in his employment
because of his sex. Relying on the Fifth Circuit’s decision in Garcia v. Elf
Atochem North
America, 28 F.3d 446, 451-452 (C.A.5 1994), the district court held that “Mr.
Oncale, a male, has no cause of action under Title VII for harassment by male
co-workers.” App. 106. On appeal, a panel of the Fifth Circuit concluded that
Garcia was binding Circuit precedent, and affirmed. 83 F.3d 118 (1996). We
granted certiorari. 520 U.S., 117 S.Ct. 2430, 138 L.Ed.2d 192 (1997)

II (1) Title VII of the Civil Rights Act of 1964 provides, in relevant part,
that “it shall be an unlawful employment practice for an employer … to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 78 Stat. 255, as amended,, 42
U.S.C. S 2000e-2(a) (1). We have held that this not only covers “terms” and
“conditions” in the narrow contractual sense, but “evinces a congressional
intent to strike at the entire spectrum of disparate treatment of men and
women in employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64,
106 S.Ct. 2399, 2404, 91
.Ed.2d 49 (1986) (citations and internal quotation marks omitted). “When the
workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment, Title VII is
violated.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
370, 126 L.Ed.2d 295 (1993) (citations and internal quotation marks omitted).
(2)(3)(4) Title VII’s prohibition of discrimination “because of …sex”
protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 682, 103 S.Ct. 2622, 2630, 77 L.Ed.2d 89 (1983), and in
the related context of racial discrimination in the workplace we have
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
that group.” Castaneda v. Partida, 430 U.S. 482, 499, 97 S.Ct. 1272, 1282, 51
.Ed.2d 498 (1977). See also id., at 514 n. 6, 97 S.Ct., at 1290 n. 6 (Powell,
J., joined by Burger, C.J., and REHNQUIST, J., dissenting). In Johnson v.
Transportation Agency, Santa Clara Cty., 480 U.S. 616, 107 S.Ct. 1442, 94
L.Ed.2d 615 (1987), a male employee claimed that his employer discriminated
against him because of his sex when it preferred a female employee for
promotion. Although we ultimately rejected the claim on other grounds, we did
not consider it significant that the supervisor who made that decision was
also a man. See id., at 624-625, 107 S.Ct., at 1447-1448. If our precedents
leave any doubt on the question, we hold today that nothing in Title VII
necessarily bars a claim of discrimination “because of … sex” merely
because the plaintiff and the defendant (*1002 or the person charged with
acting on behalf of the defendant) are of the same sex.
Courts have had little trouble with that principle in cases like Johnson,
where an employee claims to have been passed over for a job or promotion. But
when the issue arises in the context of a “hostile environment” sexual
harassment claim, the state and federal courts have taken a bewildering
variety of stances. Some, like the Fifth Circuit in this case, have held that
same-sex sexual harassment claims are never cognizable under Title VII. See
also, e.g., Goluszek v. H.P. Smith,697 F.Supp. 1452 (N.D.Ill.1988). Other
decisions say that such claims are actionable only if the plaintiff can prove
that the harasser is homosexual (and thus presumably motivated by sexual
desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d
1191 (C.A.4 1996), with Wrightson v. Pizza Hut of America, 99 F.3d 138 (C.A.4
1996). Still others suggest that workplace harassment that is sexual in
content is always actionable, regardless of the harasser’s sex, sexual
orientation, or motivations. See Doe v. Belleville, 119 F.3d 563 (C.A.7
(5)(6) We see no justification in the statutory language or our precedents
for a categorical rule excluding same-sex harassment claims from the coverage
of Title VII. As some courts have observed, male-on-male sexual harassment in
the workplace was assuredly not the principal evil Congress was concerned
with when it enacted Title VII.
But 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. Title VII prohibits “discriminat[ion] … because of … sex” in
the “terms” or “conditions” of employment. Our holding that this includes
sexual harassment must extend to sexual harassment of any kind that meets the
statutory requirements.
(7)(8) Respondents and their amici contend that recognizing liability for
same-sex harassment will transform Title VII into a general civility code for
the American workplace. But that risk is no greater for same-sex than for
opposite-sex harassment, and is adequately met by careful attention to the
requirements of the statute. Title VII does not prohibit all verbal or
physical harassment in the workplace; it is directed only at “discriminat
[ion] … because of … sex.” We have never held that workplace harassment,
even harassment between men and women, is automatically discrimination
because of sex merely because the words used have sexual content or
connotations. “The critical issue, Title VII’s text indicates, is whether
members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.” Harris, supra,
at 25, 114 S.Ct., at 372 (GINSBURG, J., concurring).
(9)(10)(11)(12) Courts and juries have found the inference of discrimination
easy to draw in most male-female sexual harassment situations, because the
challenged conduct typically involves explicit or implicit proposals of
sexual activity; it is reasonable to assume those proposals would not have
been made to someone of the same sex. The same chain of inference would be
available to a plaintiff alleging same-sex harassment, if there were credible
evidence that the harasser was homosexual. But harassing conduct need not be
motivated by sexual desire to support an inference of discrimination on the
basis of sex. A trier of fact might reasonably find such discrimination, for
example, if a female victim is harassed in such sex-specific and derogatory
terms by another woman as to make it clear that the harasser is motivated by
general hostility to the presence of women in the workplace. A same-sex
harassment plaintiff may also, of course, offer direct comparative evidence
about how the alleged harasser treated members of both sexes in a mixed-sex
workplace. Whatever evidentiary route the plaintiff chooses to follow, he or
she must always prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted “discrimina[tion] …
because of … sex.”
(13)(14) And there is another requirement that prevents Title VII from
expanding into a general civility code: As we emphasized in Meritor and
Harris, the statute does *1003 not reach genuine but innocuous differences in
the ways men and women routinely interact with members of the same sex and of
the opposite sex. 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. “Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment – an environment that a
reasonable person would find hostile or abusive – is beyond Title VII’s
purview.” Harris, 510 U.S., at 21, 114 S.Ct., at 370, citing Meritor, 477
U.S., at 67, 106 S.Ct., at 2405-2406. We have always regarded that
requirement as crucial, and as sufficient to ensure that courts and juries do
not mistake ordinary socializing in the workplace–such as male-on-male
horseplay or intersexual flirtation–for discriminatory “conditions of
(15)(16) We have emphasized, moreover, that the objective severity of
harassment should be judged from the perspective of a reasonable person in
the plaintiff’s position, considering “all the circumstances.” Harris, supra,
at 23, 114 S.Ct., at 371. In same-sex (as in all) harassment cases, that
inquiry requires careful consideration of the social context in which
particular behavior occurs and is experienced by its target. 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. 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.
Common sense, and an appropriate sensitivity to social context, will enable
courts and juries to distinguish between simple teasing or roughhousing among
members of the same sex, and conduct which a reasonable person in the
plaintiff’s position would find severely hostile or abusive.

III Because we conclude that sex discrimination consisting of same-sex sexual
harassment is actionable under Title VII, the judgment of the Court of
Appeals for the Fifth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.

Justice THOMAS, concurring.
I concur because the Court stresses that in every sexual harassment case, the
plaintiff must plead and ultimately prove Title VII’s statutory requirement
that there be discrimination “because of … sex.”


Recently, the Supreme Court of the United States decided that a man who was
harassed on the job by his fellow male co-workers and supervisors could file
a law suit using a Federal Law which prohibits discrimination based on ‘sex’.
(Oncale v. Sundowner Offshore Services, No 96.568) Previous to the Supreme
Court decision lower federal courts were divided regarding how to interpret
same-sex sexual harassment. Some courts flatly rejected inclusion of this
type of harassment under the federal law claiming that harassment could only
take place between members of the opposite sex. A typical example of opposite
sex sexual harassment would be when a male colleague asked a woman co-worker
for non-consented sexual favors. Other courts, however, extended protection
to same-sex sexual harassment situations.

After the Supreme Court decision in Oncale, many commentators are claiming
the Supreme Court unified the lower court’s varied opinions by allowing a
same-sex sexual harassment suit. They note that, the Chief Justice, writing
for an unanimous court, said that a man who was subject to a co-worker
putting his penis on his neck and arm, and who was held by a co-worker while
his supervisor attempted to force a bar of soap into his anus, could claim he
was sexually harassed. However encouraging the Court decision sounds,
American lesbians and gays should be extremely guarded in their celebration.
Additionally, the decision may signal a retreat from the protection women
have only recently secured.

Caution is needed because the Supreme Court warned that not all same sex
sexual harassment would violate the federal law. The Supreme Court indicated
that plaintiff’s must prove up their cases by either offering ‘direct
comparative evidence about how the alleged harasser treated members of both
sexes in a mixed-sex workplace’, or showing there was a general hostility ‘to
the person harassed because of the gender of the individual’. As to the
latter method, the Supreme Court offers an example where ‘a female victim is
harassed in such a sex-specific and derogating terms by another woman as to
make it clear that the harasser is motivated by general hostility to the
presence of women in the workplace’. This might be a situation where a car
saleswoman harasses another woman by constantly calling her a ‘bitch’,
‘whore’, and where she leaves notes on her desk that she should find work

Considering the first method of proof, it is difficult to picture how the
plaintiff in Oncale will be able to use comparative evidence since there were
no women oilriggers. Thus, plaintiff is left with the second method of
proving up his case. He will have to show that the men on the oil rig had a
general hostility toward men which also seems like an impossible task. What
happened in Oncale is a group of men singled out one male for extremely
hostile treatment. There is no indication in the facts that these men didn’t
like men in the workplace. Indeed, they seemed to band together like a pack
of wild male dogs. A more likely explanation of the harassment is that the
plaintiff, who is a non-gay soft-spoken male of slight stature, does not
appear to be a ‘manly-man’, and was harassed because he failed to conform to
the oil-rig standard of what males should be. In other words, Mr. Oncale was
harassed because he appeared to be gay.

Adding confusion to an already difficult task, the Supreme Court
subsequently, but on the same day, disposed of two same-sex sexual harassment
cases differently. In the first case, a gay supervisor repeatedly
propositioned and offered employment benefits in exchange for sexual favors
to a male waiter. When the waiter reported the matter to management, the
supervisor retaliated. The lower court found that this type of same-sex
sexual harassment violated the federal law. The Supreme Court denied to hear
the case. The effect of denying to hear is to agree with the lower court. In
the second case, co-workers constantly referred to one of the plaintiffs, a
young man 16 years old perceived by the other workers to be gay, as a ‘fag’,
or ‘queer’. The young man was told by his co-workers they were going to take
him to the woods where they would ‘get him up the ass’, and they backed him
up to a wall and grabbed his testicles to find out if he was a ‘girl or boy’.
The lower court said the young man had a right to sue under the federal law.
In this case the Supreme Court remanded (sent back) in light of Oncale.

Quite obviously, these two cases indicate that the Supreme Court is quite
comfortable in letting relief be offered to a straight who has been harassed
by a gay, but has a difficult time when a person is harassed because they are
queer or because they appear to be queer. Despite the fact the Oncale case
was held as including same-sex sexual harassment, American queers have still
not achieved equity with non gays. In fact, just the opposite is true.
According to the cases after Oncale if you are a queer and you harass, the
person harassed will have a remedy. If you are queer and you are harassed, it
is unlikely that you will be protected.

One explanation is that the Supreme Court does not want to get involved in
issues of sexual orientation or sexual stereotypes when it involves queers.
Thus the Court struggles to limit what sex means. Sometimes, the Court
indicates the word sex means anatomical structure or physical attributes of a
person. The comparative proof required by the Court comports with this
meaning of sex that is, a harasser treats males differently from females. The
other method of proof, at least by example of the cases remanded or refused
to be heard, indicate that the court has sexual activity in mind. Nothing
else explains the decision to let a case stand where a gay supervisor
harasses a male waiter, and then remanding when a group of presumedly
straight males harass a gay appearing young man.

A better approach would be to not focus on the harasser’s sexual orientation
or the harrasser’s sexual intent. In essence, it is unimportant whether the
harrasser is motivated by his desire to impose his ideas of gender conformity
on non-conforming individuals, or is motivated by his own sexual desire, or
is consumed by hatred or jealously of a member of a particular sex. What is
important is that the harasser is using some definition of the victim’s
gender or sexual identity as a means to intimidate, assert power over or take
advantage of a person’s perceived weakness. Thus, regardless of the nature of
the motivation, each discriminatory act has a ‘sex’ component, creates a
hostile workplace and interferes with the worker’s ability to work. As such,
it would seem clear that queers should fall within the gambit of protections
offered under American sexual harassment laws. However, given the current
make-up of the court, it is not likely that the discrimination faced by
queers and others who defy their gender’s stereotypes will come under the
umbrella of protection offered by sexual harassment laws.

It is interesting to note, as the plaintiff’s attorney in Oncale observed,
the Supreme Court could have resolved the case by merely following its own
precedent, which gives a broad definition to sex/sexual harassment and which
found that discrimination on the basis of gender stereotypes is
impermissible. In this earlier case, the Supreme Court ruled that a woman
could not be fired because she failed to fit the feminine stereotype by being
aggressive, swearing and not wearing traditional feminine apparel. This
precedent, if applied to facts like those represent in Oncale, should mean
that men cannot also be discriminated against because of their failure to fit
a stereotypical and elusive male ideal. For reasons known only to the Supreme
Court, this line of reasoning has not been applied either to queers or to men
like the plaintiff in Oncale. The Supreme Court’s failure to see the truth in
the nature of the discrimination presented in Oncale raises grave concerns
both for queers and for women. For queers it becomes painfully clear that
they can only be the harasser but never the harassed. For women, Oncale
signals that the Supreme Court may have also changed the way that courts will
examine harassment against women. According to Oncale’s attorney, the Court
seems to have changed the type of proof needed.

These cases indicate that, for queers to be guaranteed protected from
harassment, new legislation will have to be passed. But, the future of
federal legislation which would protect all Americans including queers in the
workplace is an unlikely event. Unlike other countries, American gays and
lesbians are destined to play the waiting game for nation-wide protection.

Charlene Smith


Mrs Thomas, Scalia