After a Supreme Court ruling, employers face a broader interpretation of the law.
by Jennifer T. Daly
Male supervisor. Female subordinate. He promised her a promotion in exchange for sex. A case of sexual harassment? You bet. But what if the subordinate had been a man?
Until recently, there often was no case, said Dawn D. Bennett-Alexander, a UGA employment law expert in the Terry College of Business. At least not until this past March, when the U.S. Supreme Court ruled that sexual harassment also applies to people of the same gender.
The courts unanimous decision turned out exactly as predicted by Bennett-Alexander, who has spent the past 16 years examining the deep divide in how judges view sexual harassment cases between men and women and those between people of the same gender.
"Lower courts will have no choice but to conform their decisions to the Supreme Courts holding," she said. "Those courts that did not recognize a cause of action for sexual harassment where the harasser and harassee were the same gender must now do so."
The legal sticking point, she said, was the way courts interpreted Title VII of the 1964 Civil Rights Act, which prohibits job discrimination on the basis of race, color, gender, religion or national origin. While the Supreme Court already had ruled that Title VII does not protect against discrimination based on "affinity orientation" (sexual orientation), "the gender category of Title VII had been judicially determined to include sexual harassment," Bennett-Alexander said.
"These two holdings came together and wreaked havoc in the courts," she said. "It is an understatement of herculean proportions to say that those decisions were deeply divided on the issue of whether same-gender claims are actionable under Title VII."
Although more than 98 percent of sexual harassment cases are brought by women against men, same-gender suits entered the fray during the past five years, with 27 decisions in 1995 and 20 in 1996. The rulings in these cases and a sprinkling of earlier cases have been all over the board: Some courts ruled same-gender cases were allowable; others said no.
But since Title VII does not protect homosexuals from discrimination, why was there such a divide? Because the issue of sexual harassment is separate from sexual orientation, she said. Some courts have recognized that; some havent.
"If youre really acting stupid in the workplace and keeping me from doing my work, do I care what your orientation is?" she said. "No. Just leave me alone."
One of the ways the courts define sexual harassment under Title VII is quid pro quo in this case, a demand for sex in exchange for work-related benefits, such as a promotion.
"Its the classic situation of an employee being terminated for refusal to have sex with his or her supervisor," she said. "Its discrimination because the conditions of employment, have sex or be fired, are imposed on one gender but not on the other gender."
While some courts found that same-gender quid pro quo cases are protected under Title VII because of harassment, others found harassment secondary to the issue of sexual orientation, which is not protected under Title VII.
Kinds of Harassment
As part of her research to understand the different interpretations, Bennett-Alexander charted categories of sexual harassment. By looking at legal history, she found more than 90 possible configurations for sexual harassment, which fall under four primary categories: the harasser is male and the victim is female, the harasser is female and the victim is male, both are male or both are female.
The configurations include rank distinctions, such as whether the harasser is a supervisor or a co-worker, and sexual harassment distinctions, such as quid pro quo cases versus hostile-environment cases, where harassment is not based on getting something for sexual activity but rather on "severe and pervasive unwanted actions."
A hostile environment can erupt, for example, when a male supervisor is attracted to a female co-worker. Even if he is clear he will not give her a promotion for sex, his actions, based on his attraction to her, interfere with her ability to do her job.
Hostile-environment cases can be further divided into categories of animosity and scape-goating, Bennett-Alexander said, where a female is harassed because her male co-workers just dont like having her in the workplace. Still other hostile-environment cases fit into a "raunchiness/ horseplay" subcategory, where male co-workers might constantly tell dirty jokes or "in fun" harass a female colleague.
When Bennett-Alexander added the non-traditional male/male, female/female categories into the mix, the configurations became even more complex. For example, if the harasser is a male supervisor who creates a hostile environment based on attraction, one of four additional configurations also exists:
Of the nearly 100 variables on the same theme, only 18 involve opposite-gender sexual harassment, she said. This is what has led to inconsistency in the courts on often very similar cases.
"Those variables make a difference," Bennett-Alexander said. "If you went back to the judges and asked them, Did you realize that if this were male versus female in the same situation you probably wouldnt have ruled that way? They probably would say, Oh, yes, I would have."
But, she said, a careful view of case histories shows the opposite. The courts, in fact, have used different language in describing similar suits, based on the sexual harassment category they consciously or subconsciously labeled the participants. For some judges, the fact that a sexual harassment suit was brought by one man against another immediately brought in the issue of sexual orientation, which is not protected by Title VII. For them, it was case closed.
"I would look at them and say, OK, how did you get from point A to point B?" she said. "This guy is being a real jerk to that guy, really giving him a hard time, and the judge is talking about homosexuality not being protected. What in the world does that have to do with it? When you think about it, you are saying you are giving homosexuals carte blanche to do what they want to."
Bennett-Alexander said that in her review of more traditional sexual harassment cases, nobody ever talked about who the harasser was. What was important, she said, was what that person was doing to the harassee. And whether that person would do it if the harassee was of the other gender.
"I dont know how you flip the switch and say if both of them are the same gender the same rules dont apply," she said.
The point of her research is illustrated clearly in the following hypothetical situation:
Jane Doe claims she was subjected to repeated sexual harassment by her male supervisor and two male co-workers. In addition to verbal comments, she alleges her supervisor once placed his genitals on her neck; another day he put his genitals on her arm. Finally, after the group threatened rape and forced a bar of soap between her buttocks during a shower, she quit and filed suit against her employer for sexual harassment under Title VII of the Civil Rights Act of 1964. Does she have a case?
If the allegations are true, it seems an absurd question to pose. But what if Jane Doe is actually a Joe specifically, Joseph Oncale, an oil rig worker, for whom the above scenario was the basis of the recent Supreme Court ruling.
The Supreme Courts ruling on Oncale vs. Sundowner Offshore Services has become a defining moment in same-gender sexual harassment cases, Bennett-Alexander said.
If Oncale were a woman the traditional category of sexual harassment would have been in place and there would have been little more to do than look at the evidence of the case. But because both Oncale and the defendants are men, the evidence on both sides took a back seat to the courts interest in the parties sexual orientation. The U.S. District Court for the Eastern District of Louisiana found in Oncale vs. Sundowner Offshore Services that "a male has no cause of action under Title VII for harassment by male co-workers." This was affirmed by the U.S. Court of Appeals for the Fifth Circuit, which held "that same-sex harassment is not cognizable under Title VII."
But in the 1981 quid pro quo case Wright vs. Methodist Youth Services, which Bennett-Alexander said is the starting point for same-gender case analysis, the court viewed the Title VII requirement differently.
In that case, a male employee lost his job because he resisted the sexual advances of a male supervisor. The court found that although neither "of the parties nor this court has been able to locate any direct precedent for such a claim, Title VII should clearly encompass it. discrimination is sex discrimination whenever sex is for no legitimate reason a substantial factor in discrimination."
With the Supreme Courts March ruling, "the mess that was created can now stop, and common sense can now reign supreme," Bennett-Alexander said.
"The courts that held that Title VII did not cover same-gender sexual harassment presumed, for some bizarre reason, that if the parties were of the same gender, then there was an element of homosexuality. Not so," she said. "Especially since sexual harassment requires no component of sex, in the prurient sense, to be present.
"A female giving only females a hard time, but not males, may not have anything to do with homosexuality, but it sure does create a different condition of employment for one gender than the other and ought to be protected under Title VII."
Many of Bennett-Alexanders findings on the topic are included in her textbook Employment Law for Business, a groundbreaking textbook for business students that provides an overview of Title VII law and guides future managers down what often is a complicated and costly legal road.
In the past, business law classes have centered on such topics as contracts, product liability and constitutional law; employment law was just one piece of the curriculum. But Bennett-Alexander found that of the more than 15,000 work-related cases brought annually by employees against companies, 78 percent are Title VII-type cases. Of those, employees win more than 75 percent of the time.
"When I looked at the numbers I realized it wasnt lawyers who were getting people in trouble," she said. "It was the managers who needed to be talked to because they made the decisions that resulted in litigation, costing companies millions of dollars.
"And it was pretty clear that a lot of Title VII violations were not managers intending to do something wrong or to discriminate. A lot of it came out of just pure ignorance," she said.
Not finding any text on the issue, Bennett-Alexander, along with her colleague Laura Pincus of DePaul University, decided in 1995 literally to write the book on employment law.
The publisher was skeptical because employment law was not widely offered on college campuses around the country. Their book started a national trend, Bennett-Alexander said.
"Whether you are making baskets or doing accounting, youve got to deal with the people aspect of it or often end up in a lawsuit," she said. "I tell my students its like those Magic Eye 3-D pictures that hide the real picture. Im going to show them something else that is richer and fuller that they simply hadnt seen because they werent looking at the picture that way. And when they realize thats the picture they will be responsible for as managers, it floors them."
Jennifer T. Daly is an award-winning freelance writer living in Atlanta. She has a bachelors degree from the UGA College of Journalism and Mass Communication.