Same-Sex Sexual Harassment
Sexual harassment in the workplace is usually associated with a heterosexual employee making unwelcome sexual advances to another heterosexual employee of the oppositegender. There are also cases where a homosexual employee harasses an employee ofthe same sex. But can a heterosexual employee sexually harass another heterosexualemployee of the same gender?
The Supreme Judicial Court of Massachusetts, in Melnychenko v. 84 Lumber Company,424 Mass. 285, 676 N.E.2d 45 (1997), concluded that same-sex sexual harassment isprohibited under state law regardless of the sexual orientation of the parties.
Leonid Melnychenko and two other employees at a Massachusetts lumberyard weresubjected to humiliating verbal and physical conduct by Richard Raab and two otheremployees. Raab loudly demanded sexual favors from the men, exposed himself, andsimulated sexual acts. Eventually the three employees quit their jobs with the lumbercompany and sued, claiming that sexual harassment was the reason for their departure.
At trial, the judge concluded that Raab's actions were not "true romantic overtures to theplaintiffs, and that they were not inspired by lust or sexual desire." Raab, who was"physically violent and sadistic," sought to "degrade and humiliate" the men.
The trial judge and the Supreme Judicial Court agreed that Raab's behavior constitutedsexual harassment because it interfered with the three plaintiffs' work performance bycreating an intimidating, hostile, humiliating, and sexually offensive work environment.Raab's sexual orientation did not excuse the conduct. The unwelcome sexual advancesand requests for sexual favors were more than lewd horseplay and raunchy talk. Theyconstituted sexual harassment.
In a subsequent case involving charges of same-sex sexual harassment, the SupremeCourt held in Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 118 S.Ct.998, 140 L.Ed.2d. 201 (U.S. 1998), that Title VII prohibits sexual harassment even whenthe harasser and target of harassment are of the same sex. Joseph Oncale worked forSundowner Offshore Services on an oil platform in the Gulf of Mexico from August toNovember 1991. Oncale's supervisor and two co-workers forcibly subjected Oncale tohumiliating sex-related actions in the presence of the rest of the crew. Oncale had evenbeen threatened with rape. Oncale complained to other supervisors, but no remedialaction was taken. Oncale eventually quit, requesting that Sundowner indicate that hevoluntarily left due to sexual harassment and verbal abuse. He subsequently filed a TitleVII action in the U.S. District Court for the Eastern District of Louisiana.
The Fifth Circuit ruled against Oncale, stating that the Title VII prohibition against sexualharassment does not include same-sex sexual harassment, even harassment as blatantas Oncale's supervisor exposing his penis and placing it on Oncale's body, and also, alongwith two co-workers, attacking Oncale in a shower and forcing a bar of soap into his anuswhile threatening rape. Justice Scalia wrote the opinion for a unanimous court thatreversed the lower court. In a strongly worded opinion, he complained of the lack ofcommon sense demonstrated by the lower courts that had hitherto excluded same-sexclaims, and also those that had conditioned liability on a same-sex sexual harasser beinggay or lesbian.