On March 4, 1998, the United States Supreme Court unanimously ruled that Title VII’s prohibition against sexual harassment applies to harassment by a member of one sex against a member of the same sex, thereby resolving what the Court termed a "bewildering variety of stances" taken by federal circuit and district courts on the issue. In Oncale v. Sundowner Offshore Servs., No. 96-568 (Mar. 4, 1998), the Court seized the opportunity to clarify the breadth and scope of Title VII’s prohibition against discrimination because of sex. As a practical matter, the Oncale opinion means that employers should continue to take the same steps we have been recommending for years to prevent and address potential harassment and discrimination in the workplace, including the maintenance of "zero tolerance" policies not only for unlawful harassment or discrimination, but also for conduct that contributes to, or gives the perception of, unlawful harassment or discrimination.

The plaintiff, Joseph Oncale, brought a sexual harassment suit under Title VII alleging (among other things) acts of sexual battery and threats of homosexual rape by two male supervisors and a male co-worker. The United States Court of Appeals for the Fifth Circuit affirmed summary judgment against Oncale under its earlier holding that "[h]arassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination." The Supreme Court reversed, holding that same-sex harassment claims are cognizable under law if they meet the standards of proof applicable to sexual harassment claims generally. In so holding, the Court relied on a literal reading of Title VII’s prohibition that "[i]t shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex…." (emphasis added). Building on its earlier holding that Title VII prohibits discrimination by people of one race against people of the same race,(fn1) the Court definitively ruled that same-sex discrimination falls within Title VII’s purview. The Court clarified that hostile work environment claims are not about the gender of the alleged harasser, but rather are about behavior – because of sex – that is so severe or pervasive that it would alter the conditions not only of the alleged victim’s employment, but also of a reasonable person’s employment. The Court explicitly rejected the requirement that, to be unlawful, the alleged harasser must be a homosexual or be motivated by sexual desire. The Court also rejected the argument that recognition of same-sex harassment claims would impose an unworkable burden on employers and would "transform Title VII into a general civility code for the American workplace." The Court observed that "[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and jurists to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or pervasive."

Oncale is a foreseeable clarification of Title VII jurisprudence that confirms that unlawful discrimination is any discrimination because of sex. To employers who currently have effective policies against discrimination and harassment in place, Oncale simply means – keep doing what you are doing. Although Oncale requires employers to recognize the viability of same-sex discrimination and harassment claims, the Court’s decision should have no effect on the policies and internal mechanisms that have been and continue to be advisable to prevent workplace discrimination and harassment and to address potential problems when they come to your attention. To those employers who do not have policies and procedures in place, seize this opportunity to implement a policy that articulates a "zero tolerance" approach to all discrimination and harassment in the workplace.

As a brief reminder, employers can combat sexual harassment in the workplace while protecting themselves from liability by doing the following:

• Establish a written policy against all forms of unlawful discrimination and harassment that identifies prohibited conduct, that sets up a confidential and accessible complaint procedure which assures appropriate corrective action in the event of a policy violation, up to and including discharge, and that prohibits retaliation.
• Set up an effective complaint/investigatory process.
• Do not rely exclusively on the formal complaint procedure; address potential discrimination or harassment of which management becomes aware through channels other than a formal complaint.
• Disseminate and post the written policy and discuss it with employees.
• Educate supervisors thoroughly on all aspects of the policy, emphasizing their special obligation not to engage in discrimination or harassment and to deal with, rather than ignore, potential discrimination and harassment, and document attendance at such training meetings.
• When potential harassment or discrimination comes to your attention through a complaint or another way, investigate (or retain a third party to investigate) promptly – generally by interviewing the accuser, the accused, and witnesses, gathering any documentary or other evidence, and documenting the investigatory process.(fn2)
• Resolve all complaints with a written report that thoroughly and fairly summarizes the factual findings and the bases for them in a way that avoids making unnecessary "admissions" that can later be mischaracterized in the course of any litigation, and attach supporting documents.
• If a policy violation is found, based on the seriousness of the offense, the perpetrator’s past record, the action taken against others for similar offenses, the victim’s input, and any other relevant circumstances, take (and document) appropriate corrective action that is reasonably calculated to prevent any further harassment or discrimination.
• Communicate results on a "need to know" basis in confidence, and give closure to the matter with those involved, keeping in mind that unnecessary or improper disclosure may result in liability for defamation.
• Follow-up by checking with the victim to make sure that the problem has been resolved and that no retaliation has occurred and with the perpetrator to make sure that all mandatory steps are followed and that the conduct has not been repeated, and document the follow-up.

During the 1998 term, the Supreme Court will render decisions in at least two other sexual harassment cases that present important issues of Title VII jurisprudence. We will monitor the Court’s decisions on these important issues and update you as appropriate.

(fn1) Castaneda v. Partida, 430 U.S. 482, 499 (1977) ("Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.").

(fn2) Given the sensitivity and complexity of these investigations, if you do not retain counsel to conduct an investigation, then it is advisable to obtain legal advice about, for example, how to conduct it, report it, and what, if any, corrective measures to take.