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social sciences

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Sexual Harassment  
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Sexual Minorities and "Quid Pro Quo" Harassment

The newly emerging doctrines of sexual harassment quickly took on special significance for sexual minority employees, but only in limited circumstances. As early as 1980, when the sexual harassment theory was still relatively new, federal courts began to find that same-sex "quid pro quo" harassment violated Title VII. The leading case was Wright v. Methodist Youth Services, 511 F. Supp. 307 (N.D. Ill. 1981), where the court reasoned that the male victim had been pressured for sexual favors by a male supervisor who was presumably attracted to men, and thus who would not have subjected a female employee to the same treatment. The underlying theory was that such "quid pro quo" harassment violates Title VII because the victim is singled out because of his or her sex.

Since Title VII is a sex discrimination statute, not a general statute against workplace harassment, only harassment motivated by the sex of the victim violates the statute. The determination by courts that same-sex quid pro quo harassment violates Title VII was relatively uncontroversial, and the theory only failed in cases where the harassing individual was shown to be an "equal opportunity" harasser--one who demanded sexual favors from both men and women. In such a case, the courts felt, the victim was not being singled out because of his or her sex, and so the anti-discrimination principle embodied in Title VII was not relevant.

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Sexual Minorities and the Hostile Environment Theory

Application of the hostile environment theory to "same-sex harassment" proved far more complicated and controversial. In these cases, the victim was usually either openly gay, a closeted person believed by others to be gay, or a non-gay person incorrectly perceived by others to be gay.

The harassment would usually take the form of name-calling, derogatory comments and practical jokes, but might escalate to more serious violence, including physical beatings and work sabotage. Some of the time, the harasser would use language suggesting discomfort with or disapproval for signs of gender-role nonconformity by the victim. That is, derogatory statements would attribute feminine attributes to a man or masculine attributes to a woman. But sometimes it was clear from the context or statements that the harasser's motivation had to do with the victim's actual or perceived homosexual orientation.

Because Title VII does not forbid discrimination on the basis of sexual orientation, the question of whether such conduct created liability to the victim was conceptually difficult. Clearly, harassment motivated solely by the sexual orientation of the victim would be difficult to fit into the hostile environment theory that the Supreme Court had endorsed in Meritor, since the victim was being selected based on his or her sexual orientation, not his or her sex. In addition, at least some courts expressed doubt that Title VII would even apply to cases in which men were harassing men or women were harassing women, since, they argued, the statute was intended to protect members of one sex from discrimination by members of the opposite sex.

The Oncale Decision

In Oncale v. Sundowner, mentioned above, the Supreme Court confronted this argument in a case brought by a male oil rig roustabout who suffered severe harassment of a sexual nature (including a simulated shower-room rape with a bar of soap) from co-workers in an all-male crew. The lower federal courts in the 5th Circuit (whose jurisdiction includes Louisiana, where this occurred) concluded that Title VII did not apply to cases of "same-sex" harassment. The Supreme Court unanimously disagreed, holding that the relevant issue under the statute is whether the victim's sex was the motivation for the harasser's selection of him or her to be the victim.

At the same time, the Court signaled implicit disapproval of a growing trend among some of the lower federal courts to find that unlawful harassment had occurred when the harassing conduct was of a "sexual nature," regardless of the harasser's motivation for selecting the particular victim. The point was that Title VII is a discrimination statute, not a harassment statute. Harassment can be one form that discrimination takes, but not all harassment is unlawfully discriminatory, even if severe and pervasive, when it is inflicted with equal severity regardless of the factors listed in the discrimination statute.

Thus, after Oncale it was clear that harassment "because of sex" was covered under Title VII, even if both the harasser and the victim were of the same sex. What remained less clear was whether sexual minority employees who encountered workplace harassment, whether or not of a "sexual nature," could obtain relief under Title VII. How could a plaintiff prove that the harassment was "because of sex" as opposed to "because of sexual orientation?"

The Price Waterhouse Decision

An older sex discrimination case provided a theoretical way out of this dilemma. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court dealt with a discrimination claim by a woman who had been denied a promotion to partnership at a large accounting firm. During pretrial discovery, her attorneys had uncovered extensive evidence that some partners had opposed her promotion on the ground that her demeanor and dress were insufficiently "feminine" to meet their image of a "lady partner." The head of her office told her that in order to become a partner she would have to walk, dress, and act more femininely and start wearing make-up and jewelry.

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