Supreme Court Watch: Same-Sex Sexual Harassment

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• PHIL PONCE:

  For a legal explanation of today's same-sex sexual harassment ruling we turn to NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek, and we look at the ruling's impact on the workplace with Ellen Bravo, co-director of 9 to 5, the national association of working women which represents women and men in non-management positions, and Kathleen Neville, a business consultant and author of "Corporate Attraction: An Inside Account of Sexual Harassment on the Job." Welcome all. Stuart Taylor, first, a quick statement of the facts of the case that led to this decision.

• STUART TAYLOR, National Journal:

  This is a lawsuit by a man named Joseph Oncal, who had been harassed on an oil rig in the Gulf of Mexico on which only men worked. Two of his supervisors and a third man engaged in a succession of sexually harassing types of things with him, including humiliating him with a bar of soap when they were naked in the shower once, for example, threatening him with rape. He ultimately resigned, saying that he feared being raped, although none of this was apparently motivated by homosexual desire–it was just being nasty to him–and ultimately sued for sexual harassment, claiming a violation of the 1964 Civil Rights Act, Title VII, sex discrimination provisions.

• PHIL PONCE:

  And the lower court, the Fifth Circuit Court of Appeals, held that?

• STUART TAYLOR:

  They held flatly that because he was a man suing for sexually harassing conduct by other men he had no federal remedy. He could sue in state court for battery, or something like that, but they held broadly that same-sex sexual harassment doesn't violate federal civil rights laws. And that was the issue the Supreme Court took the case to consider.

• PHIL PONCE:

  And the Supreme Court held that.

• STUART TAYLOR:

  The Supreme Court unanimously reversed that decision and held that male-on-male or female-on-female sexual harassment can violate Title VII, can violate federal law, just as, for example, it might violate federal law if a female supervisor discriminated against all the women who worked for her in promotions or whatever. The court said that there had been a bewildering variety of different views of this in the lower courts. Some said same-sex sexual harassment doesn't violate federal law. Others said, well, only if it's homosexual and, therefore, motivated by sexual desire. The Supreme Court said all that was wrong, that it depended on all the facts and circumstances, that courts should try these things with common sense, that it didn't have to be motivated by sexual desire to constitute a violation of federal law but it does have to be sex discrimination. In other words, they called upon the courts–maybe wished that the courts would not turn this into a code of civility in the workplace so that every flirtation or locker room horseplay gets to be a lawsuit, but that if it's serious enough and abusive enough to subject members of one sex or the other to unequal treatment, then there's a federal lawsuit.

• PHIL PONCE:

  That's because sexual harassment is a form of sexual discrimination under legal rulings.

• STUART TAYLOR:

  That's right. The words sexual harassment don't appear in the relevant law. They've come in–that concept has come in as a form of sex discrimination because Title VII not only protects you against discrimination in terms of promotions, firing, hiring, but also the terms and conditions of employment. The Supreme Court has interpreted that broadly to mean that if women or men are subjected to a hostile environment that denies them the same opportunities that members of the other sex have–the opposite sex have–that's sexual harassment. If it's done because of sexual desire on the part of the boss, that's illegal, and if it's done for some other reason, that's illegal too.

• PHIL PONCE:

  So, you talk about the Supreme Court giving a common sense kind of an approach to what same-sex sexual harassment is. So the elements then are for establishing it?

• STUART TAYLOR:

  Basically if, as a result of abusive conduct, serious abusive conduct, members of one sex are treated unequally from members of the other to the point that they are subjected to what the court calls a hostile environment in the workplace, then they can sue. Now, if that sounds vague and mushy and confusing, it's because it is. And if you noticed that the Supreme Court was unanimous in this case, it's because they've been unanimous about all their sexual harassment cases because they have generally dealt with broad, abstract principles and have not gotten down to the difficult business of okay, how do you prove it's discrimination. In this case, for example, everyone on the oil rig was a man. So it would have been fairly hard to prove that women would have been treated differently. The Supreme Court punted on that issue and let the lower courts worry about it.

• PHIL PONCE:

  Ms. Neville, is it vague and mushy for employers? How do they–how do they respond to this decision?

• KATHLEEN NEVILLE, Sexual Harassment Consultant:

  Well, all along I believe that many employers have had a very difficult time at bringing the definition of sexual harassment to all their employees. And I think we're still struggling with that. This decision makes perfect sense because one of the key aspects of it is that it's of a sexual nature. The confusion lies with–when we talk about a hostile work environment that under the law, under Title VII, that it must be a hostile–of a hostile nature, of a sexual nature. And I think that element is definitely present in this case. And for me, it's actually a very good decision as far as helping employers to further define what sexual harassment is in the workplace.

• PHIL PONCE:

  But are you saying that there's still quite a bit of–quite a bit of interpretation that's out there as far as what actually–what kind of an act might constitute same-sex sexual harassment?

• KATHLEEN NEVILLE:

  I do quite a bit of training on site with all different size corporations here in the U.S., and I find that still, although we've kind of established a quid pro quo and hostile work environment, are the definitions of sexual harassment, I still find at the real level inside companies that there still is confusion because it's so interpretive and it's so subjective.

• PHIL PONCE:

  Ms. Bravo, are employees still confused about what constitutes same-sex sexual harassment?

  ELLEN BRAVO, 9 to 5: I think employees are confused about what constitutes sexual harassment, regardless same sex or opposite sex. But that's possible to clear up with the training, which is something we also do. I think this is a good ruling because it upholds the guideline of the EEOC since 1980. If you look at what the employer's argument was, they said, oh, this is just horseplay; it's just men kidding around. That implies that simply by being male any man would find any sexual conduct okay. That's really insulting and sexist. I think it's very clear in this case that the behavior was abusive, created a hostile work environment. Regardless of the gender of who it's done by or to, it ought not to be allowed.

• PHIL PONCE:

  Ms. Bravo, do you have any understanding of sense of just how widespread this kind of harassment exists in the workplace.

• ELLEN BRAVO:

  Well, of course, the most common kind of harassment is male against female, but we certainly are aware of same-sex sexual harassment from our trainings and calls we get on our hotline. And our experience is that usually the perpetrators are heterosexual, who act in a way against either men who are heterosexual or gay to put them down for demeaning them sexually often because they won't go along with sexually offensive behavior, or simply to punish them for being gay.

• PHIL PONCE:

  Ms. Neville, how about that, is it–Ms. Bravo seems to think it's fairly evident in the workplace if one–if one is interacting with one's colleagues what crosses the line and what doesn't.

• ELLEN BRAVO:

  Well, I think to us it is obvious, but I do find that we still at the employee level, it's still for me a challenge on most days to help employees and employers clearly define within their own workplace and their own culture what legally is binding regarding sexual harassment. I often hear people say, I'm being harassed, so, therefore, it must be sexual harassment, when oftentimes it's obnoxious behavior or a personality conflict. And clearly, there is a difference between that and sexual harassment.

• PHIL PONCE:

  What happens, Ms. Neville, when an employer comes up to you and says an employee has complained that he or she is being subjected to this behavior, that people are not–are treating them poorly and he or she thinks that maybe there's a sexual component to it?

• KATHLEEN NEVILLE:

  Well, what the responsibility of the employer to conduct an investigation, to do it promptly and thoroughly, and to look for what we look for as far as the signs of evidence of sexual harassment. It must be of a sexual nature. I mean, a hostile work environment must be repeated, such as pressure for dates, physical advances, but there are clear–there are clear indications what exactly sexual harassment is.

• PHIL PONCE:

  And in light of this decision, Ms. Neville, what kinds of advice are you going to be giving to employers?

• KATHLEEN NEVILLE:

  I think that, you know, just like with 1986, when Michelle Vincent, the Merida Savings Case, it helped us define–and this is much–this is just a further definition of broader definition–that sexual behavior, misconduct in the workplace, violates everyone's rights. And I think if we can take that to the companies that we're now training, that they'll just have simply a better workplace.

• PHIL PONCE:

  Stuart, how much guidance did the court give in determining what's the difference between horseplay over here and sexual harassment over there?

• STUART TAYLOR:

  It gave some very general guidelines. It's a rather short opinion, six and a half pages, uncharacteristic for this Supreme Court. But it was mostly common sense guidelines: A little horseplay is not sexual harassment, a nasty, abusive environment is. Now, obviously, there's an infinite number of gradations between those two extremes, and what the Supreme Court has not told us in this case is where do you cross the line from tolerable to intolerable, and I think in the nature of it, frankly, there isn't a clear line. There never will be a clear line because, as Justice Scalia says in his opinion, you can't capture these sorts of things with formulas of words. For example, he says, for a football coach to whack one of his players on the fanny on the way out to the field, not sexual harassment. If he does the same thing back in the office to a secretary, male or female, maybe it is sexual harassment. That's not the sort of distinction that you can capture with a definition.

• PHIL PONCE:

  Ms. Bravo, do you think in practice people will be able to make those kinds of distinctions?

• ELLEN BRAVO:

  I do. But I think what will really help is if employers say, you know, we can be more strict than the law, and what we want as a bottom line is that everybody treat each other with respect and dignity and particularly supervisors to people that they supervise. If you have an atmosphere like that where you can't bully people around or yell at them and scream and be insulting, regardless of whether it would rise to the level of a violation of Title VII, you can just say it won't fly here. And that would really be the kind of workplace we need.

• PHIL PONCE:

  Ms. Bravo, what do you say to those critics of this decision who say that this is going to encourage a lot of spurious kinds of complaints?

• ELLEN BRAVO:

  You know, people say this all the time, and the truth is most people who are sexual harassed don't file complaints; they don't do anything for a lot of reasons, because they don't want to be trouble makers, because they don't want to be in trouble, because they fear they won't be believed, and often because they don't have money for lawyers, because most lawyers won't take these cases on contingency. It's pretty scary to go against your employer with a battery of corporate lawyers if you don't have one at all. So I think it's really misleading and distorting to say that the big problem we face is furious lawsuits. The big problem we face is that sexual harassment remains a persistent problem in the workplace and that there haven't been serious enough consequences. Some companies have done a great job, many have not, and we have to do better.

• PHIL PONCE:

  Ms. Neville, still a serious problem, pervasive in the workplace as Ms. Bravo says?

• KATHLEEN NEVILLE:

  Oh, absolutely. It continues to be. There is encouragement because there's more training and there's more heightened awareness. But, you know, it continues to be a challenge.

• PHIL PONCE:

  Stuart, quickly, what do you say to those people who look at this case and say legally it provides a basis for further expansion of gay rights generally in the workplace? Is this an apples and oranges thing, or does this case legally have the potential to do that?

• STUART TAYLOR:

  It does not really. The court treats it the same, whether you're gay or not gay, for purposes of sexual harassment. Interestingly, during the argument Justice Ginsberg started to suggest that maybe if people are being harassed because they're gay men and, therefore, that's a stereotype about what men are supposed to be like, why maybe that is a form of harassment. That verges down the road towards gay rights, but the court didn't touch it, didn't touch that concept, didn't deal with it either way.

• PHIL PONCE:

  And nor did the court touch the concept of harassment based on somebody's sexual orientation, is that right?

• STUART TAYLOR:

  They did not. I think if you're–except it's implicit in the court's decision that if a boss is harassing homosexual males based on sexual orientation, that nobody else in the workplace, that's sexual harassment because the males–those males–are being treated worse than the females. And that's discrimination.

• PHIL PONCE:

  That's where we'll have to leave it. Thank you all very much.