Same Sex Harassment

Same Sex Harassment Joseph Oncale was employed from August to November of 1991 by Sundowner Offshore Services, Inc., as a roustabout on a sea-based oil rig for $7 an hour. He had worked on offshore rigs before (and does today), but says he’s never encountered such abusive treatment as when he signed on with Sundowner. Oncale claims that while on the job he was sexually harassed by three male Sundowner employees: John Lyons, his supervisor; and Danny Pippen and Brandon Johnson, two co-workers. Early during Oncale’s employment, Lyons, Pippen, and Brandon began threatening Oncale with rape. Oncale endured months of constant harassment and verbal threats while on the job.

On October 25, 1991, the threats became reality when Oncale was physically and sexually attacked. Pippen grabbed him, pulled him down, and held him immobile in a squatting position on his knees while Lyons unzipped his pants, pulled out his penis, and stuck it onto the back of Oncale’s head. When Oncale asked them to quit, Lyons and Pippen laughed. Oncale learned later that day that most of his coworkers had seen the assault. The next day he was attacked again, this time by Brandon Johnson.

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Oncale complained to Lyon’s superiors. That same night, Lyons and Pippen attempted to rape Oncale as he was taking a shower. Pippen grabbed him and lifted him off of the ground. Oncale states that while Pippen held him aloft, Lyons used a bar of soap as a tool for sexual abuse. Lyons told him, “You know, they’re fixing to f*** you” (Oncale Amicus Brief).

Oncale wrestled his way free of the men and escaped. Oncale complained further and tried to arrange to get off the oil rig, but his supervisor retaliated. Lyons said, “You told you daddy, huh? Well, it ain’t going to do you no good because I’m going to f*** you anyway.” Oncale says he felt that, “If I didn’t leave my job, that I would be raped or forced to have sex .. that if I didn’t get off the rig, that I would be sexually violated” (Oncale Amicus Brief). Oncale continued to try to work but says he, ” .. couldn’t sleep because I was afraid that they would do something to me, I couldn’t fight, and I felt disgraced.” Oncale quit soon thereafter, stating on his pink slip that he “voluntarily left due to sexual harassment and verbal abuse.” On December 5, 1991, he filed a sexual discrimination complaint with the U.S.

Equal Employment Opportunity Commission. His suit complained of both a hostile environment and quid pro quo sexual harassment. When Oncale’s case reached the U.S. Fifth Circuit Court, he was denied judgment. Oncale’s attorneys appealed and the case eventually appeared before the Supreme Court. In a unanimous decision, the Supreme Court Justices said men who sexually harass other men (and women who harass women) are discriminating and thus breaking the law.

They based their findings on Title VII of the 1964 Civil Rights Act. According to the E.E.O.C., the act states that, “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.” Sundowner based their defense on three separate arguments. The first claimed that in order for an act to be considered “sexual harassment” there must be a man and a woman involved. According to Sundowner, same sex harassment doesn’t exist. To this the Supreme Court replied, “When women and men are sexually violated, verbally or physically, they are targeted and harmed as women and as men ..

and citizens have a right to seek redress of such injuries” (Cloud). The second argument made by Sundowner’s attorneys (a variation of the first) was that Title VII of the Civil Rights Act was created specifically for women who have been harassed by men and does not apply to Joseph Oncale. In response, the Supreme Court stated that perpetrators of sexual harassment should derive no legal immunity from the gender of their victims. Sundowner’s third argument against Oncale claimed that the Civil Rights Act was created to safeguard against gender discrimination, not to create a “general civility code among men.” In support of the argument, employees at Sundowner testified that Oncale wasn’t singled out for abuse, and that, “All males who go onto an offshore platform are subject to a kind of hazing.” Supreme Court Justice, Joseph Scalia, refused to accept that excuse for Oncale’s mistreatment. He replied, “Sexual harassment of any kind, is illegal” (Oncale Amicus Brief). In my opinion, Sundowner’s treatment of Oncale was not simply a crime; it was a gross breach of morality.

Whatever a person’s status, however powerful the perpetrator, however great the profits, there is no valid argument for abuse, sexual or otherwise, of another human being. The Golden Rule is universal. It is not restricted by parameters that exclude people due to their, gender, race, color, sexuality, or personal strengths or weaknesses. I agree with Solomon who says, “Everyone has a right to human dignity, a right to basic respect, a right not to be humiliated, and in the workplace a right to do one’s job without compromise to one’s integrity and innermost self (258). Lyons, Pippen and Brandon’s behavior would be considered immoral from any major ethical viewpoint.

Both the Act Utilitarian and Rule Utilitarian theories are based on the assumption that every one in a group is considered an equal. Obviously, this was not the case. Oncale was targeted because he was perceived as weaker than his co-workers. A deontologist would assuredly point out that Oncale’s basic human rights were violated. His “personhood” was not respected.

Sundowner’s argument that same sex discrimination doesn’t exist is faulty. Sexual abuse of men by men is, and always has been, a serious and neglected social problem. Typically, men are raped by other men when they are isolated in a situation where there are no women; in prisons, in confined and isolated work sites, in the military, at all male colleges, and in athletics. Male sexual aggression has always had widespread negative effects and deep roots in egoism and perceived sexual inequality. I am glad the court recognized that some weaker members of society are targeted simply because they are easy targets.

When Sundowner claimed that Title VII was created specifically for women who have been harassed by men, it’s obvious they were trying to use the letter of the law, versus the spirit of the law to extricate themselves from a lawsuit and avoid harmful publicity. In reality, the act was written during a time when quid pro quo, man/woman sexual harassment was a highly controversial and political issue. However, I believe Sundowner was only trying to hide behind legalese armor and refused to admit that they failed in their more basic responsibility to protect the dignity, and physical and emotional well being of an employee. Regardless of Title VII’s original legal intent to protect women, the situation certainly applied to Joseph Oncale. Again, I agree with Solomon who states, “Responsibility need not mean that you are the cause of the problem, it does mean, however, that you are in a position to do something about it, and just as important, that you ought to do something about it” (70). John Lyons was guilty of a serious abuse of power.

And because Oncale’s immediate supervisor was one of the main perpetrators, he had no recourse but to report the mistreatment to Lyon’s superiors. Indeed, Oncale followed the chain of command but Sundowner executives looked the other way when one of their employees was being cruelly harassed. They might have avoided the lawsuit altogether if they had taken immediate action when Oncale first complained. Their silence showed an extreme lack of compassion and was an indirect endorsement of the situation. Sundowner’s attorneys also argued that the original intent of the Civil Rights Act was to safeguard against gender discrimination, not to create a “general civility code among men.” Even if Oncale’s treatment were a type of hazing, that all of Sundowner’s employees experienced, it was still wrong.

“It’s a company tradition” doesn’t work as an excuse. Policies and company traditions should support ethics, not create them. Traditions can be wrong and when they are, they should be changed or eliminated. I have a difficult time understanding the mindset of people that are able to treat others so brutally. It frightens me to apply Kant’s theory of universalizability in this case, but after a fair amount of research I realize that this type of male-aggressive behavior is more prevalent than I had ever imagined. It’s unsettling because it smacks of a “Lord of the Flies” mentality.

Men that engage in such behavior are obviously morally deficient, and that may not be changeable; but perhaps the Supreme Court’s judgment will at least let those same men know that the law considers such behavior morally and legally wrong, and from now on, they must pay for the crime of sexual harassment, regardless of their victim’s gender. Philosophy Essays.

Same sex harassment

Imagine that you are in the shower of the gym at work and three co-workers enter, then hold you down to the ground while rubbing their genitalia across your bare skin. No matter what the circumstance you would find this behavior appalling and disgusting. Now think to yourself if every person involved had been a male. Would you say that they were just “horsing around?” I hope not.
The attitude of American society and legal culture regarding sexual harassment has changed over the last 35 years. Our progressive society has finally decided to look at the issue of whether harassment of a sexual nature by a member of your same gender is included in what Title VII of the Civil Rights Act of 1964 was trying to protect employees against. Several courts have permitted same sex harassment; they were however, at odds over whether such claims were valid if the harassing individual were heterosexual.Claims have been found unlawful when one individual is homosexual thus the harassment involved sexual desire or interest. This was one issue at hand in the controversy over same sex harassment, whether or not both individuals could be heterosexuals. Although nowhere in Title VII does it say anything about sexual harassment or the conduct being based on sexual desire courts have interpreted the laws prohibition of discrimination based on an individual’s race, color, religion, sex or national origin to include sexual harassment as a form of discrimination.
Title VII makes it, “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.”Title VII protects men as well as women, and in the context of racial discrimination it has been widely rejected that an individual will not discriminate upon members of their own protected class.
Under Title VII there are two kinds of sexual harassment quid pro quo and hostile environment. The first, quid pro quo, is when a person in a supervisory position places the performance of sexual favors as a condition on sustaining or gaining employment or other employment benefits. Harassment of this type holds the employer strictly liable for all damages to the affected employee. The second, hostile environment harassment occurs when behavior by a co-worker or supervisor is pervasive enough to have a negative effect on the employee. The employer is only held liable for hostile work environment harassment when they had knowledge of the situation or the situation was so pervasive that the employer should have known about it.
Despite the changing attitude towards sexual harassment in America, the courts have been divided on the issue of same-sex harassment. Several federal district courts skirted around the issue, but one court met this issue head on when Joseph Oncale filed suit in an Eastern Louisiana District Court against his former employer Sundowner Offshore Services, Incorporated.
Joseph Oncale, a roustabout on an oil platform for Sundowner Offshore Services, Incorporated in the Gulf of Mexico, was approached in the shower by co-workers and sodomized with a bar of soap. On other occasions, these co-workers, John Lyons, Danny Pippen, and Brandon Johnson, subjected Oncale to humiliating acts such as restraining him while placing their penises on his neck and arms. Lyon’s, the crane operator, and Pippen, the driller, both had supervisory positions although neither one was Oncale’s immediate supervisor.
Oncale complained to Sundowner’s Safety Compliance Clerk, but the clerk told Joseph that the men made fun of him as well by calling him names suggesting homosexuality.The company failed to take any action against the three employees. After months of recurring encounters Oncale resigned from his position and filed a complaint against Sundowner in the Easter Louisiana District Court. His complaint held that the physical harassment containing such blatant sexual overtones was a violation of Title VII of the Civil Rights Act of 1964.
Louisiana courts held that Garcia v. Elf Atochem North America 28 F.3d 446, was standing precedent.In Garcia, the court held that a male employee’s alleged sexual harassment by a male superior does not constitute a claim under Title VII even though the harassment had sexual underpinnings. The Louisiana court maintained their finding that the law does not cover same-sex harassment therefore Oncale had no cause of action under Title VII for harassment by same gender co-workers.
Same sex harassment has been an issue that courts around the nation have been forced to address, and they have reached varying and conflicting conclusions. With such a controversial issue arising more often in Federal District Courts, the Supreme Court decided to grant a writ of certiorari so that the topic could be resolved.
As in most Supreme Court cases there were many political concerns by interest groups and lobbyists. One of the most predominant concerns raised was that by recognizing same sex harassment, Title VII would become a general civility code for conduct in the workplace.The other was that those who have never had reason to be discriminated upon in the workplace, will now have an outlet against their employers.
In the Supreme Court decision these questions as well as others were addressed. The court held that same gender harassment may be actionable under Title VII of the Civil Rights Act, even if the harasser is heterosexual. The Supreme Court explained that it could find “no justification in the statutory language or our precedents for a categorical rule excluding same sex harassment claims from the coverage of Title VII.”The court also acknowledged that the decision to outlaw same sex harassment raises questions as to what constitutes sexual harassment in any form.

Justice Scalia in his decision, outlined the parameters of Title VII and the Equal Opportunity Employment Commission Guidelines on sexual harassment. He reiterated the purpose of the Civil Rights Act to prohibit an employers discrimination with respect to compensation or employment status based on any of the suspect classes. He notes that the act shows the noble intent of congress to eliminate all forms of disparate treatment of men and women in the workforce.Scalia relies on the holding in Harris v. Forklift Sys., Inc. 114 S.Ct. 367, when the court held that,
“Title VII is violated 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.”
The language of the law makes no gender distinctions , in turn it is not the courts position to interpret the law any other way than that which it is written.

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The court notes that there is very little information regarding the intent of the Congress which enacted the Civil Rights Act. Allegedly “sex” was originally included as a suspect class in an attempt to defeat the Act.Regardless, the court reasoned that although male on male harassment was most likely not the original intent or even a secondary concern when Congress enacted Title VII, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”Despite what the original intent of the Act was in 1964, the Supreme Court redefined the scope of Title VII to include all forms of sexual harassment which meet the statutory guidelines.
In the response to concerns that this decision would turn Title VII into a code of conduct for the workplace, the court restated the requirements to qualify as sexual harassment. Title VII requires two prongs to test for sexual harassment. First the behavior must be discriminatory and second the behavior has to be offensive enough to alter the victims’ workplace. That is, merely using words of a sexual nature does not constitute a violation of Title VII. It is imperative that there are disadvantaged terms or conditions of employment which only pertain to one gender. The second requirement is made to ensure that harmless horseplay or intersexual flirtation is not misconstrued as sexual discrimination.The behavior has to be severe and pervasive throughout the workplace to cause an alteration in the workplace that a reasonable person would find hostile or abusive.

The Equal Employment Opportunity Commission Guidelines define sexual harassment as unwelcome sexual advances when made a condition of employment, rejection or performance of sexual requests is used in making employment decisions or the conduct substantially interferes with the individuals work performance due to a hostile or intimidating environment. In order to show a hostile work environment one must prove five criteria. The first of the five is that the victim must be a member of a protected group or suspect class. Secondly, you must have been the subject of unwelcome advances of a sexual nature. Third, the harassment was based on the victims sex and not any other characteristic. Fourth, the victim is required to show an affect on their employment terms or conditions, and fifth the employer must have knowledge as well as failure to act on that knowledge.
These guidelines will help to ensure that there are no abuses of the new broader interpretation of Title VII, however, the decision of the court still leaves a few questions unanswered. First of all, under the definition of same sex harassment, is discrimination because of sex a group or individual injury?In other words does the entire class of the effected gender have to be discriminated upon or can an isolated incident have a viable claim under Title VII and the Equal Employment Opportunity Guidelines? Secondly, do the new guidelines set forth in Oncale v. Sundowner 118 S.Ct. 998, place a heavier burden of proof on the victim for all sexual harassment claims than before?Finally, is there a remedy available to victims of sexual harassment who fall outside the guidelines or is there simply no action to be brought?
To answer these questions as well as possible you must look beyond the opinion of the court. None of the opinions specifies whether or not the discrimination has to be against a group, or if an individual being discriminated against because of sex, has a claim under Title VII and the EEOC guidelines. Looking at the statute referred to by Scalia, it states that it is, “unlawfulto discriminate against any individual.”This leads one to believe that same sex harassment can be either an individual or a group injury.
As for the heavier burden of proof being placed upon the victim it seems as if heterosexuals bringing a same sex harassment case must prove the fifth element of causation in the guidelines when it would be unnecessary for a member of the opposite sex to prove this. It is placing the responsibility on the plaintiff to show that the harassment was “because of sex.”Many courts in attempts to fulfill the fifth element have relied on the “but for” approach. “An employee is harassed or otherwise discriminated against because of his or her sex, ‘but for’ the employees sex, he or she would not have been the victim of such discrimination.”The court is trying to stay away from inferring that one must prove sexual desire while preventing cases that are based merely on sexual connotations in conversations.
The last question, what happens if the harasser falls outside of the boundaries laid out in the Oncale case? “Oncale may have expanded the coverage but restricted the liability under the law.”By placing such guidelines on sexual harassment the courts have implied that employers are not responsible for all harassment which goes on in the workplace. While the court has broadened the scope of Title VII to include same sex harassment, it has increased the restrictions to validate all harassment cases. If a claim does not fall into the guidelines set forth in the Oncale case it leaves certain victims with no alternate route or cause of action in the legal system. This allows the “equal opportunity harasser” who discriminates on both male and female employees to be beyond the scope of Title VII since the harassment is not because of sex.
Some concerns for the long-range effects of the Oncale decision have been voiced. Fears that the broadened scope of Title VII claims will allow, “a flood of sexual harassment claims from a class of people who have never faced barriers to gender equality in the workplace,” and the ultimate result being lesser protection for those women and men the legislature was intending to protect.

The courts acknowledge the existence of a fine line between horseplay and flirtation that may be a normal part of the workplace, and sexual harassment as discrimination in the workplace. The opinion of the court was written in a way to only forbid objectively offensive behavior to protect against frivolous claims.


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