Justices weigh same-sex bias case High court appears likely to extend 1964 federal law

December 04, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court appeared yesterday to be poised to extend the federal law against sexual discrimination on the job to incidents in which men harass men or women harass women.

In a lively one-hour hearing, with the justices pondering vivid ways that sexual gestures might be made in the workplace -- including "patting on the fanny," as Justice Sandra Day O'Connor put it -- the court for the first time considered the issue of same-sex harassment.

The case involves a male worker on an offshore oil rig in Louisiana who contends that he was the victim of harassment when his male supervisors sexually molested him and threatened him with rape.

Not a single justice spoke up yesterday in favor of a federal appeals court decision that rejected Joseph Oncale's lawsuit. The appeals court concluded that same-sex harassment on the job is never illegal under federal civil rights law, even when the harassment is so demeaning or threatening that a worker is forced to quit.

In fact, Chief Justice William H. Rehnquist remarked bluntly: "I don't see how we could possibly sustain" that ruling.

Indeed, other appeals courts have disagreed with that ruling, and the Supreme Court has stepped in to settle the matter.

Typical of the justices' reaction yesterday was a question posed by Justice Stephen G. Breyer, who seemed to suggest that sexual harassment among members of the same sex is barred by federal law.

"A Jew could discriminate against a Jew," he said. "An African-American against an African-American, an Italian against an Italian. Why isn't it possible that a homosexual could discriminate?"

But the justices did not seem to favor a sweeping ruling that would make all harassing gestures that involved some sexual message or meaning subject to challenge under federal law.

Instead, a majority seemed to be leaning toward ruling that a worker should be protected from being harassed by someone of the same sex only if that harassment was discriminatory because it was aimed at only the targeted individual's sex and not the opposite sex.

As Justice Antonin Scalia phrased it, the law would be violated only if someone was "singled out for harassment" because of his or her sex. The law would not be violated, he suggested, merely because someone was singled out and called "a fat slob"; that would not be a sex-based gesture.

O'Connor said she doubted that bias could be proved "if the supervisor has a habit of patting every single employee on the fanny every day," without regard to the employee's sex.

Justice Ruth Bader Ginsburg suggested that the law would probably apply if an employer took complaints about sexual harassment from women seriously but dismissed such complaints from men as "boys will be boys."

But she also said that if an employer had an all-male work force, it might not be possible to show discrimination because there would be no comparison with the way women might be treated.

The justices strenuously questioned all three lawyers in the case but aimed their most skeptical questions at Houston lawyer Harry M. Reasoner, who was defending the offshore oil rig company.

Reasoner said that when Congress passed the law against sex bias on the job in 1964, its only intent was to act against "discrimination between men and women." He asserted that "there is no indication that it passed the statute to regulate male conduct" toward other men.

Reasoner said that same-sex misconduct on the job could be dealt with under state law. The incidents in this case, he said, might violate five separate Louisiana laws against aggressive behavior.

Nicholas Canaday III, an attorney for the worker involved, said the court did not have to issue a wide-ranging opinion to settle all possible questions about when same-sex harassment is illegal.

All the justices need do, he contended, is open courthouse doors to workers with same-sex harassment claims and leave it to the lower courts to work out the details.

The Clinton administration supports an extension of the law to men-on-men or women-on-women sex discrimination at work.

A ruling in the case is expected by next summer.

Pub Date: 12/04/97

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