WASHINGTON -- Does a male worker break the law by using aggressive sexual gestures toward another worker? The answer seems to be no -- if the other worker is also a man. That is the answer the Supreme Court refused yesterday to second-guess.
In a brief order, the court bypassed a Texas man's appeal that claimed that his male boss and another man on the job touched him repeatedly in a rough sexual way, because they thought he did not act enough like a man.
At one point, they sneaked up on their target, grabbed him by the ankles and held him upside down while rubbing and poking his body. In reaction, the company forced his boss into retirement and fired the co-worker. The gesture also led to the legal test case that ended yesterday.
In recent years, the Supreme Court has made it clear that conduct of that kind would amount to illegal sexual harassment, if a man did it to a female co-worker. The theory is that gestures of a sexual nature create a "hostile work environment" of the worker who is the target.
The Equal Employment Opportunity Commission has received cases in which a male worker complained of harassing conduct by a male supervisor or a co-worker. The EEOC has treated those as valid claims under federal civil rights law -- but only if the target had been singled out because he was a man. "If a hostile work environment is created [for the worker] because of that worker's sex, the legal standards are the same," regardless of the sex of either party, an EEOC spokesman said.
A federal appeals court, in a ruling that appears close to EEOC policy, decided in December that even if harassment has sexual overtones, federal law does not cover incidents in which the harasser and the target are both men -- unless there is proof that the target was treated differently because of his sex.
There was no proof of discrimination, the appeals court found, in the case of Richard A. Giddens, a former machinery operator at a Shell Oil Co. refinery in Odessa, Texas.
Mr. Giddens complained in his lawsuit that, for 2 1/2 years, he was subjected to an "ordeal" of harassment from his shift supervisor and another worker. He said they had singled him out because of his personal characteristics: a softness in his demeanor, and a lack of aggressiveness. Since they disapproved of those characteristics, he contended, they created a "hostile work environment" for him.
He contended that he had twice complained to the management about the rough gestures, but that nothing was done. Only after a final incident, the sneak attack in February 1991, did management act against the two harassers, Mr. Giddens said.
A jury found that he had suffered no loss of employment status or benefits because of the gestures, and thus ruled that he was not a victim of discrimination.
His unsuccessful appeal to the Supreme Court, however, said he was claiming only that he was harassed in a sexual way, making the workplace hostile for him, not that he suffered any explicit loss of job rights.
As usual, the Supreme Court gave no reason for turning aside his appeal.
The justices granted review of no new cases yesterday, leaving their current docket still rather thin. The sparse docket prompted one member of the court to speak out sarcastically about the light workload the justices have arranged for themselves.
"Given the current state of our docket," Justice John Paul Stevens wrote in a brief opinion, there is "a peculiar irony" in the court's use of an argument about its "scarce resources." That was the reason the court gave for blocking any further free appeals by a California man who had failed to get the court to hear 23 legal pleas in recent years, without paying the filing fees.
In another order, the court rejected an appeal by the Resolution Trust Corp., the federal agency that takes over failing thrifts, arguing that it should not be subject to lawsuits in federal court for mismanaging the business of a thrift it has taken over. A lower federal court said such mismanagement could lead directly to federal court, without first letting the agency itself review the claim.
The court also turned aside an attempt by the city of San Diego to defend its right to have a Christian cross stand in a city park on a hilltop overlooking the city. A federal appeals court found that monument unconstitutional, but only under California's state constitution, not the U.S. Constitution.