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Same-sex harassment held illegal Supreme Court ruling expands key provision of '64 Civil Rights Act; Case involved assault on male; Law on workplace doesn't apply to all sex jokes, flirtations


WASHINGTON -- The Supreme Court, widening the federal ban on sex discrimination in the workplace, ruled unanimously yesterday that it is illegal for co-workers to sexually harass a worker of the same sex.

Harassment between a man and a man, or a woman and a woman, the court said, is within the reach of the main federal law against sex bias on the job: Title VII of the 1964 Civil Rights Act.

The decision, which was hailed by civil rights groups and business lawyers alike, is expected to have an effect in workplaces across the country. The court will also rule this term on three other sexual harassment cases.

In its ruling yesterday, which cleared up confusion among lower courts, the justices stressed that federal sex discrimination law does not turn every flirtation or every sexually tinged joke or gesture on the job into an illegal act of bias.

Justice Antonin Scalia, who wrote the decision, said:

"Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person would find severely hostile or abusive."

What the law forbids, the justice stressed, is discrimination because of sex. That does not include "innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex."

Scalia gave a specific example: It would not violate the law, he said, for a football coach to smack a player on the rear as he goes onto the field. But it might be illegal for the coach to do the same thing to his secretary, whether the secretary was male or female.

As major decisions go, yesterday's ruling was brief -- seven pages long. But the court was "very firm, very clear, very matter-of-fact" in making clear what is and is not sex discrimination, said Kathy Rodgers, executive director of the NOW Legal Defense Fund, a women's rights group.

"It clears up the muddiness about trivial events" in the workplace, she said, while making clear that sexual harassment is "real and serious and it is discrimination."

Paul Salvatore, a New York labor law specialist who usually represents employers, said the ruling will be welcome to employers because it puts aside "a hodgepodge of opinions in the lower courts" and makes clear that "not every offensive sexual joke is" a violation of the federal law.

William J. Kilberg, a Washington employment lawyer, said the decision takes the issue of sex discrimination "back to basics. It emphasizes common sense and the importance of social context, and that will be music to employers' ears."

Lower courts contradicted

The ruling contradicts decisions reached by lower courts, including the federal appeals court that covers Maryland and other mid-Atlantic states. That court, the 4th U.S. Circuit Court of Appeals in Richmond, has allowed only very limited claims of same-sex harassment, in far narrower situations than yesterday's decision will permit.

Though clear-cut in a number of ways, the ruling did not answer all questions about same-sex harassment.

It did not make clear, for example, whether harassment of an employee because he or she is homosexual could be covered by the law.

Salvatore and Kilberg said they did not think the ruling went that far, but Rodgers of the NOW legal group said the court had left open that possibility.

Ruth E. Harlow, managing attorney of the Lambda Legal Defense Fund, a gay-rights organization, said: "We hope the law continues to develop so that all employees, including gay men and lesbians, have equal access to sexual harassment remedies."

Her group and others are supporting a bill in Congress that would create a federal ban on harassment of homosexuals in the workplace.

The decision does clarify, several attorneys agreed, that to win a same-sex harassment claim, it is not necessary to compare the treatment of men and women in similar job situations. If the harassment of a worker is based on his or her sex, there is no need for the victim to show that the other sex would be treated more favorably, the decision seems to suggest.

Supervisors sued

The ruling came in the case of Joseph L. Oncale of Houma, La., who worked on offshore oil-drilling platforms in the Gulf of Mexico, for Sundowner Offshore Services Inc.

In his sexual harassment lawsuit, Oncale claimed that two supervisors and a co-worker -- all of them men -- sexually assaulted, battered and touched him and threatened him with rape.

A federal appeals court threw out his case, saying the federal law never applies to same-sex harassment.

The Supreme Court overturned that result, though it did not decide whether Oncale should now win his case at a trial.

But Kilberg, a specialist on employment law, said yesterday, "I think his case is as close to a sure thing as you can get."

Oncale told the Associated Press: "This is not just for me. No one in any workplace should be harassed. It happened to me. It's been a struggle."

Scalia's opinion spoke for the full court, but Justice Clarence Thomas wrote a brief separate opinion stressing that he agreed with the ruling because he said it was based solely on the specific wording of federal law.

The issue of sexual harassment gained national prominence after it was raised in the emotional fight over Thomas' nomination to the court in 1991.

Pub Date: 3/05/98

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