Intergender sexual harassment prohibited by federal law

By Richard L. Wiener, PhD,and Brenda Russell, Saint Louis University

Title VII of the Civil Rights Act of 1964 as amended prohibits employers from discriminating against workers with respect to compensation, terms, conditions or privileges of employment because of race, color, religion, sex or national origin. Employers may not exact sexual contact in exchange for compensation or advancement (i.e., quid pro quo harassment) (Henson v. City of Dundee, 1982) nor may they subject workers to intimidating, hostile or offensive working environments because of their gender (Harris v. Forklift Systems, Inc., 510 U.S. 17, 1993; and Meritor Savings Bank v. Vinson, 477 U.S. 57, 1986). The plaintiff in a hostile work environment case must show a pattern of unwelcome sexual conduct that was 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment' (Meritor, 1986, p. 60).

In most sexual harassment cases, women are the plaintiffs and men the alleged perpetrators. However, in some cases women engage in unwelcome social sexual conduct toward men. Adding to the confusion, courts apply two different standards to the sufficiently 'severe or pervasive' test. Some jurisdictions adopt the viewpoint of the objective and gender neutral, reasonable person 'perspective of a reasonable person?s reaction to a similar environment under essentially like or similar circumstances' (Harris, 1993, p. 21?22). Other courts recognize a divergence of views between the sexes and adopt a reasonable victim, usually a reasonable woman standard. For example, the Ninth Circuit ruled 'that a female plaintiff states a prima facie case of hostile environment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment' (Ellison v. Brady, 924 F.2d 872, 9th Cir. 1991, p. 879).

Confusing standards

The fact that people may act against members of their own gender compounds the confusion of the different standards. In a recent case, Oncale v. Sundowner Offshore Services, 118 S.Ct. 998, the U.S. Supreme Court took a male-on-male harassment claim (Oncale, 83 F.3d 118, 5th Cir. 1996). Oncale, a roustabout on an oil platform in the Gulf of Mexico, quit his job after his supervisors and coworkers suggested that he was homosexual and threatened him with rape. At one point, the crews? pervasive conduct reached the level of physical assault. Following the precedent of Garcia v. Elf Atochem North America, 28 F.3d 446, 5th Cir. 1994, the district court dismissed the case (and the Fifth circuit affirmed, 83 F.3d 118, 5th Cir.1996) ruling that Title VII did not apply to intergender, sex related conduct.

The U.S. Supreme Court overturned Garcia ruling that, '¼nothing in Title VII necessarily bars a claim of discrimination ?because of sex? merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are the same sex.' (Oncale, p. 1001). Justice Scalia went on to write, 'harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.' (Oncale, p. 1002). This extension of sexual harassment doctrine does not constitute a general civility code in the workplace because general teasing or roughhousing, e.g., a coach smacking a professional football player on the buttocks as the player takes the field, does not cross the line of hostile work environment harassment unless a reasonable person in the plaintiff?s position would find the conduct 'severely hostile or abusive.'

New areas to study

This holding has several psychologically relevant implications. First, it extends Title VII protection to workers whose same-sex supervisors or co-workers sexually humiliate them. In addition, it suggests a number of new issues for scientific research. For example, researchers can now study gender differences in the evaluation of both intragender and intergender claims in a legally relevant paradigm. It is possible to compare the effects of gender identification with victims versus perpetrators (intergender effects) against simple self-referencing (intragender effects) as explanations for gender differences. Further, studies of the differences in the reasonable person and victim standards can be expanded to include intergender claims. Finally, studies of the perception of discrimination differences in homosexual and heterosexual situations are now relevant to the litigation process. It is not clear that Oncale clarified the law of sexual harassment, but the court opened several interesting research issues in the area of social sexual conduct in the workplace.

'Judicial notebook' is an effort by the Courtwatch Committee of APA?s Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.