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| DEFINING HARASSMENT
December 3, 1997NEWSHOUR TRANSCRIPT |
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The Supreme Court heard arguments in case about a Louisiana oil rig worker who claims that he was sexually harassed by his male supervisors. Margaret Warner talks with Stuart Taylor, senior writer with National Journal and contributing editor at Newsweek, about whether the 1964 Civil Rights Act protects against same sex harassment
A RealAudio version of this segment is available.
NEWSHOUR LINKS:
September 11, 1997:
A report on the problem of sexual harassment in the U.S. Army.
May 27, 1997:
A report on the Paula Jones sexual harassment suit against President Clinton.
April 29, 1997:
Staff Sergeant Delmar Simpson is found guilty of 18 counts of rape in a military trial.
January 7, 1996:
The Supreme Court considers whether freedom from sexual harassment is a constitutional right.
November 8, 1996:
Army Secretary Togo West discusses incidents of sexual harassment in female U.S. Army recruits.
April 26, 1996
A report on complaints of sexual harassment by women at a Mitsubishi automotive plant.
Browse the NewsHour's coverage of law.
OUTSIDE LINKS
Biographies of the Supreme Court Justices.
MARGARET WARNER: The high court today heard arguments in a case from Louisiana. At issue, whether the 1964 Civil Rights Act bars sexual harassment on the job when both the victim and harasser are the same sex. We get more now from NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek. Stuart, first, give us the factual background of this case.
The background on the case.
STUART TAYLOR, National Journal: Joseph Oncale was working as a roustabout on an oil rig in the Gulf of Mexico for an employer called Sundowner Offshore Services. And he claims that about in October--a couple of days in October 1991--that three guys, his two supervisors and a third guy, basically sexually harassed him and threatened to rape him. One incident was in a shower involving a bar of soap, one of them holding him while another rubbed the bar of soap in places he didn't want it rubbed. Another involved one of them exposing his private parts and touching him and threatening rape and so forth. Now, there's no evidence that--these men were married, I think, all of them, and although there were threats of homosexual rape, there was--it's not clear whether there was any homosexuality here, and there was no rape. Oncale, at any rate, complained, according to him, got no relief from the employer. The employer said they weren't going to do anything about. He ultimately quit. He filed a lawsuit for sexual harassment claiming that it violates the sex discrimination law that Congress adopted as Title 7 of the 1964 Civil Rights Act to bar sex discrimination in employment, which is the general statute under which all sexual harassment cases, or almost all of them, are brought.
MARGARET WARNER: All right. Now, so what did the lower courts do?
STUART TAYLOR: Both the trial court and the U.S. Court of Appeals for the 5th Circuit said when it's male on male or female on female, for that matter, when it's people of the same sex doing things to each other, it can't be sex discrimination within the meaning of federal law, and so they threw this case out on that broad abstract principle, saying we don't care what the motive was, the plaintiff loses. It left him the possibility of going in the state court and claiming assault or battery or something like that, but said he had no federal sex discrimination claim.
MARGARET WARNER: Okay. So what--tell us about the arguments today. First, Joseph Oncale's lawyers, what did they say?
The arguments.
STUART TAYLOR: Oncale's lawyer, whose name is Nicholas Cannaday, had a fairly straightforward argument to make. He said it can't be the law that just because it's two men, it's male on male, it can't be sex discrimination. He said, the court doesn't need to decide whether this case was sex discrimination. He can go back and have a trial about that, but that certainly some cases could be sex discrimination where it's men operating against men. He conceded, when pressed by Chief Justice Rehnquist, that at least it would have to show that there was discrimination here, not just sex, i.e., that Oncale was treated worse than if he would have been a woman, or at least was treated badly to some extent because he was a man. He conceded that rather grudgingly, but his central point was that the abstract rule the lower court adopted to throw out all such cases can't be right, and most of the justices seem to agree with it.
MARGARET WARNER: So it gets--and I want to get to Sundowner's lawyers--so the distinction here is even if there's not discrimination, could you have sexual harassment? I mean, Title 7 doesn't mention sexual harassment, does it?
STUART TAYLOR: Well, the words sexual harassment are nowhere in Title 7 or any other federal law that creates a right to sue, as far as I know. It all comes in--all of this body of sex harassment law comes in through sex discrimination. Now, the classic sex harassment case is a male boss treating women badly in the work place in a sexual way, say demanding sexual favors in exchange for promotions or whatever, which the courts have found typically is a vestige of subordination to women, which is the kind of sex discrimination the law outlaws. But when it's men on men or women on women, it obviously gets more complicated, and now the court's getting into that kind of case.
MARGARET WARNER: Okay. Now, what did the company's lawyers say?
STUART TAYLOR: The company's lawyers argued that the lower courts were right; that if it's male on male, it can't violate federal law, that it ought to be left to state law, and that if the court crosses the line, as some other courts have, and said, okay, some cases male on male may violate federal law, it would be in a bog, and Title 7, the sex discrimination law would degenerate into some kind of a general code of conduct where any time people are complaining about how they're being treated by someone else and libido somewhere appears, or a dirty word is used, or a dirty joke is made, suddenly a federal lawsuit.
MARGARET WARNER: How did the justices react to all this?
Mr. Taylor: "I think it's fairly clear that Joseph Oncale, the plaintiff, is going to win...."
STUART TAYLOR: They were very lively. Eight of them, with the exception of Clarence Thomas, who usually doesn't speak in arguments, jumped in. It seemed much more clear than it usually is who's going to win at the Supreme Court level. I think it's fairly clear that Joseph Oncale, the plaintiff, is going to win in the sense that a majority of the justices made it clear that they think the lower courts were wrong, and that in some cases at least male on male sexual harassment, hazing, call it what you will, could amount to discrimination. Justice Kennedy, for example, said, well, what if there's a homosexual boss who is giving people promotions on the basis of sexual favors? He said to Harry Reasoner, who represented the defendant, "Would you say that's not sexual harassment?". Reasoner said, "I would." But most of the justices made it fairly clear, and Justice--Chief Justice Rehnquist made it crystal clear. He said, "I don't see how he could possibly sustain the ruling of the Fifth Circuit," and none of the justices spoke in defense of that ruling.
The tricky part gets to be, okay, if you're going to have sexual harassment lawsuits of this kind when you're somewhere on the specter in-between, male on male rape and locker room antics, or fraternity boy tricks, where do you draw the line? And there were all kinds of hypothetical questions from the justices. Justice O'Connor said, "What if you have a boss who has the unfortunate habit," to use her words, "of patting each and every employee, male and female alike, on the fanny every day when he comes to work, is that going to be harassment? Where's the discrimination? Women are being treated the same as men." Justice Scalia asked--posed similar hypotheticals, and they're grappling with the difficult follow-on questions, but it's not at all clear they'll resolve any of them. I think the one thing they'll do in this case probably is say the lower court was wrong, and we're going to have to grapple with the details of cases like this.
MARGARET WARNER: Now, I understand there have been a lot of these--a lot more of these same sex harassment cases kind of coming through the courts. What are the potential ramifications of this ruling, whatever it may be?
STUART TAYLOR: There have been all kinds of sex--sexual harassment cases have basically grown tremendously, all kinds, male on male, male on female, the typical one is still a woman suing over harassment by males, but there are women suing over women, men suing over men, men suing over women, and the Supreme Court so far in every case it's had--and it's had two--one in 1986, one in 1993--has found in both in fairly classic situations that if there's a hostile working environment in which people feel uncomfortable based on sex, then it's good enough for a lawsuit. The question is whether the court will start drawing limits to that and saying, well, this is too silly. For example, suppose a boss comes in and instead of patting everybody on the fanny tells a mildly off-colored joke, and a hypersensitive male employee says, that joke subordinated men, are we going to have lawsuits over that? Those kinds of issues are probably ahead of us, and what the lower courts were doing here was sort of trying to slam the door to stop liability at one kind of clear line, but I think the line is too crude for the Supreme Court's taste.
MARGARET WARNER: All right. Well, thanks, Stuart, very much.
STUART TAYLOR: Thank you.
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