In March, as expected, the U.S. Supreme Court recognized the right of an employee to bring a hostile environment sex harassment claim in which the employee and the defendant (or the person charged with acting on behalf of the defendant) are of the same gender.  In Oncale v. Sundowner Offshore Services, Inc., the Court put to rest a split among Federal courts on the issue of whether same-sex sexual harassment claims are actionable under Title VII of the Civil Rights Act of 1964.

In affirming the right of an employee to bring such suits, the Court made clear that harassing conduct need not be motivated by sexual desire in order to support an inference of discrimination on the basis of sex.  The applicable evidentiary requirement is not related to proof that the conduct at issue was tinged with offensive sexual connotations, but rather proof that the conduct constituted “discrimination…because of…sex.”

While it might be argued that this is a somewhat broader scope of proof, in the context of litigation it is more elusive. Justice Antonin Scalia, writing for the majority, stated, “A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.  A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’
In its opinion, the Court also touched on a debate that has simmered in scholarly circles lately about the extent to which the evolution of sexual harassment laws is creating a sort of political correctness in the workplace. Justice Scalia discounted the possibility that the Court’s decision could result in Title VII expanding into a “general civility code.” Specifically:

[Title VII] does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of that is not severe or pervasive enough to create an objective hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s purview…We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake – such as male-on-male horseplay or intersexual flirtation – for discriminatory “conditions of employment.”
Since the Court’s opinion overrules the Fifth Circuit’s decision on this issue, Oncale now goes back to the district court level and ultimately to trial, unless the parties resolve the matter through settlement.