Lambda to High Court: Federal Law Applies to Same-Sex Sexual Harassment

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Friend-of-court in Oncale v. Sundowner
November 25, 1997

(NEW YORK, November 25, 1997) -- Lambda Legal Defense and Education Fund is urging the United States Supreme Court to recognize that Title VII, the federal law against sexual harassment at work, should be applied without regard to the sex or sexual orientation of the harasser or victim.

A friend-of-the-court brief that Lambda filed for itself and 10 other civil rights organizations in Oncale v. Sundowner Offshore Services, Inc. argues that a male oil-rig worker who was subjected to severe sexual harassment by male co-workers should be allowed to sue his employer under Title VII of the Civil Rights Act of 1964.

Lambda Legal Director Beatrice Dohrn, author of the amicus brief, will be available at the U.S. Supreme Court plaza to answer questions after the Oncale case is argued to the Court on Wednesday, December 3.

"The point is, federal law provides a remedy for any employee who is consistently exposed to sexual conduct that is so egregious and pervasive as to create a hostile work environment or who is forced to have sex as a term or condition of employment," Dohrn said before the hearing. "The focus has been, and should remain, on the conduct, not the sex or sexual orientation of the harasser," she stressed.

Joseph Oncale was hired through Sundowner's Houma, Louisiana, office, and worked on Chevron USA's Ship Shoal 266-A platform. In 1991, his supervisor and two co-workers attacked him in a shower, with the supervisor placing his penis on Oncale's head, and others forcing a bar of soap into Oncale's buttocks. Oncale reported this and other sexual assaults against him to Sundowner officials, who refused to take any action. The U.S. Court of Appeals for the Fifth Circuit upheld dismissal of Oncale's sexual harassment complaint, ruling that Title VII does not apply to same-sex sexual harassment.

"Title VII protects male as well as female employees. It applies regardless of the harasser's personal motivation," Dohrn said. "Some courts have wrongly found that a same-sex sexual harassment lawsuit can be brought only if the harasser is gay, but dismiss the very same lawsuit if the harasser is heterosexual.

Or, courts have suggested that in any case where the victim is gay, he or she is not protected because the harassment is somehow considered sexual-orientation discrimination, which Title VII has been held not to prohibit. For these courts, the gay issue taints everything and removes protections for us that the law affords all others," she said.

"Lambda, with the ACLU, NOW, Women's Legal Defense Fund, and many other civil rights groups, urges the Supreme Court to recognize that sexual harassment is about subjecting employees to unfair working conditions by taking advantage of them at a very vulnerable, sexual level," said Ruth E. Harlow, Lambda managing attorney, who assisted in writing the brief. "Every instance of severe sexual harassment plays upon the sex of the targeted employee and is unlawful under Title VII, regardless of the gender or sexual orientation of the perpetrators," she said.

The amicus brief argues, "It is the inherently gender-based nature of sexual harassment that brings the conduct under the purview of Title VII, no matter the respective sexes or sexual orientations of the harasser or the harassed employee, and no matter whether the harasser's intentions are amorous or hostile. The language and spirit of Title VII would be contravened by holding otherwise."

With its 25th anniversary in 1998, Lambda is the largest and oldest legal organization defending the civil rights of lesbians, gay men, and people with HIV and AIDS.

(Oncale v. Sundowner Offshore Services, Inc., No. 96-596)


Who: Lambda Legal Director Beatrice Dohrn and Managing Attorney Ruth E. Harlow What: Comment on Oncale v. Sundowner Offshore Services, Inc. Where: Plaza outside U.S. Supreme Court, Washington, D.C. When: Wednesday, December 3, immediately following Oncale argument to the Court


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Contact: Peg Byron, Lambda Legal Defense and Education Fund, 212-809-8585 x230, 888-987-1984 (pager)