New York Employment Attorney Blog
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.
A unanimous Supreme Court ruled in the plaintiff’s favor. Writing for the court, Justice Scalia stated that there was no “categorical rule excluding same-sex harassment claims from the coverage of Title VII.” Id. at 79. He distinguished the case from claims involving alleged sexual orientation discrimination, finding that “harassing conduct need not be motivated by sexual desire to support an inference of [sex] discrimination.”
In recent years, the Supreme Court’s Oncale decision has played a role in district and appellate court decisions that have recognized—to varying extents—legal protections against discrimination on the basis of sexual orientation and gender identity. See, e.g., Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 342 (7th Cir. 2017); Whitaker v. Kenosha Unified School District, 858 F. 3d 1034, 1048 (7th Cir. 2017). Other courts, however, have cited Oncale in ruling that discrimination laws do not apply to gender identity discrimination. See, e.g., Johnston v. Univ. of Pittsburgh of Com. System, 97 F. Supp. 3d 657, 670 (W.D. Pa. 2015).
The sexual harassment attorneys at Phillips & Associates represent employees, former employees, and job seekers in New York City courts, helping them assert claims for unlawful workplace practices like same-sex sexual harassment and gender identity discrimination. Contact us today at (212) 248-7431 or online to schedule a free and confidential consultation to discuss your case.
More Blog Posts:
New York City Sexual Harassment Complaint Alleges Harassment by Female Executive Against Female Employees, New York Employment Attorney Blogs, September 13, 2017
Sexual Harassment Extends Beyond Employees and Co-Workers, Affects “Virtual Assistants”, New York Employment Attorney Blogs, September 20, 2016
New York Appellate Court Reverses Sexual Harassment Judgment, Finding Plaintiffs Did Not Connect Claim to Gender, New York Employment Attorney Blogs, February 20, 2014