Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Court decisions have expanded Title VII’s definition of sex discrimination to include sexual harassment. Some of these decisions are now leading courts around the country to expand Title VII protection to discrimination on the basis of sexual orientation and gender identity. New York City discrimination law, unlike federal law, expressly includes both of these as protected categories. Two Supreme Court decisions on sexual harassment have played a significant role in decisions relating to sexual orientation and gender identity discrimination. One decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), held that discrimination based on “sex stereotyping” violates Title VII. This year marks the 20th anniversary of the other decision, Oncale v. Sundowner Offshore Services, Inc. (“Oncale II”), 523 U.S. 75 (1998), which held that same-sex sexual harassment is also covered by Title VII.
The Supreme Court received the Oncale case from the Fifth Circuit Court of Appeals, which had ruled that Title VII does not apply to harassment between members of the same sex. Oncale v. Sundowner Offshore Services, Inc. (“Oncale I”), 83 F. 3d 118 (5th Cir. 1996). The Fifth Circuit held that it was bound by its own prior decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (5th Cir. 1994). It noted, however, that other courts had reached different conclusions. A concurring opinion from a Second Circuit justice, for example, stated that “harassment is harassment regardless of whether it is caused by a member of the same or opposite sex.” Oncale I at 120 n. 3, quoting Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland, C.J., concurring).
The plaintiff in Oncale was part of an eight-man crew on an oil platform in the Gulf of Mexico. At least three members of the crew, including “the crane operator, and…the driller, [who] had supervisory authority,…forcibly subjected [him] to sex-related, humiliating actions…in the presence of the rest of the crew.” Oncale II at 77. He eventually sued for sexual harassment under Title VII.