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Judicial Understandings of Same-Sex Sexual Harassment
Prior to Oncale, a three-way split had formed among the federal appellate courts that had addressed in what ways, if any, same-sex sexual harassment could satisfy Title VII's causality requirement that discrimination occur "because of sex." Yet that split had less to do with same-sex sexual harassment than with the overlapping rationales that had converged within traditional, male-female sexual harassment claims as each circuit came to base its understanding of same-sex sexual harassment on one strand of traditional sexual harassment jurisprudence.
The Court reasoned that</p> <pre> [a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (30) </pre> <p>In the wake of Oncale, many plaintiffs in same-sex sexual harassment cases have turned to the sex stereotyping language of Hopkins for refuge, arguing that Title VII provides a cause of action for hostile environment sex stereotyping.
Some of the cases of same-sex sexual harassment involve men who do not exhibit traditional male traits and who are harassed by either male coworkers or both male and female coworkers.
What this means for gay people is that unless you live in a state that specifically prohibits discrimination based on sexual orientation, it's easier to win a same-sex sexual harassment suit if you're in the closet at work.
The district court dismissed Oncale's claim based on an earlier Fifth Circuit ruling that had held that same-sex sexual harassment is not actionable under Title VII.(7) The Fifth Circuit affirmed.
The lower courts are divided on the question, but a trend toward granting Title VII protection in same-sex sexual harassment cases has emerged.
(55) One needn't struggle to imagine that--or how--a putative harasser's actual or presumed homosexuality in a same-sex sexual harassment case could lead to an inference that he has (probably) engaged in inappropriate sexual conduct.
However, Seitz says, most did not include same-sex sexual harassment. Some willfully excluded it; others simply did not think of it.
An appeals court had rejected the claim on the grounds that same-sex sexual harassment was not covered under federal law.
Same-sex harassment: The Supreme Court hears a case that will determine whether same-sex sexual harassment in the workplace violates federal law against sex discrimination.
When Joseph Oncale filed a sexual-harassment suit against his employer in 1994, the heterosexual father of two had no idea that his case would one day become a cause celebre for gay and lesbian victims of same-sex sexual harassment. But with the Supreme Court scheduled to hear his case December 3, Oncale is adjusting to his new role as an unwitting gay rights activist.