Same Sex Harassment: Some History!

 The Texas Supreme Court recently ruled in a same sex harassment case involving school employees.  It’s a doozy of a case, generating legal opinions from our state’s highest court in excess of 100 pages.  We’ll tell you about it tomorrow.  But to set the stage for that, we need to go back 20 years to the U.S. Supreme Court’s decision about this issue.

In 1998, SCOTUS unanimously held that our sex discrimination laws apply to sexual harassment by a “same sex” person.  The case involved a roustabout working on an oil platform in the Gulf of Mexico—an all male environment overflowing with testosterone.  Joseph Oncale, the roustabout, complained about how he was treated on the rig and alleged that his employer blew off his concerns.  Eventually he quit his job stating that “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”  He sued, alleging that he was the victim of sexual harassment.

The 5th Circuit ruled against him because he was a man alleging harassment by other men.  The court believed that sexual harassment could only occur when a man harassed a woman or a woman harassed a man.  SCOTUS unanimously overturned that decision in an opinion written by the late Justice Scalia.

The Court’s opinion emphasizes causation.  The harassment must be “because of” the person’s sex.  Justice Scalia noted that cases involving men harassing women “typically involve explicit or implicit proposals of sexual activity.” This makes it easy for the court to infer that the harassment is “because of” the other person’s sex.  Justice Scalia then outlines three ways in which an inference of causation can arise in a same sex case:

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.

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.

Bottom line: the plaintiff has to show that the harassment was motivated by the other person’s gender.  This is what turned out to be the decisive factor in the case from Alamo Heights ISD that we will talk about tomorrow. Stay tuned!!  The SCOTUS case is Oncale v. Sundowner Offshore Services, Inc. decided by the U.S. Supreme Court on March 4, 1998.  We found it at 118 S.Ct. 998.


 Tomorrow: same sex harassment in Alamo Heights.