Amicus Curiae Brief — Webber v. Kansas

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AUG 1i 1997

No. 96-568

In the Supreme Court of the Ciuted States

OCTOBER TERM, 1996

JOSEPH ONCALE, PETITIONER

v.

SUNDOWNER OFFSHORE SERVICES,

INCORPORATED, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE

SUPPORTING PETITIONER

WALTER DELLINGER

Acting Solicitor General

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

SETH P. WAXMAN

C, GREGORY STEWART

General Counsel

J. RAY TERRY, JR.

Deputy General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

PAUL BOGAS

Attorney

Equal Employment

Opportunity Commission

Washington, D.C. 20507

Deputy Solicitor General

BETH S. BRINKMANN

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20520-0001

(202) 514-2217

QUESTION PRESENTED

Whether Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seqg., protects employees from

sexual harassment regardless of whether the em-

ployee and the harasser are of the same sex.

(I)

ans @ Dee

Cases—Continued:

Sprogis v. United Air Lines, Inc., 444 F.2d 1194

(7th Cir.), cert. denied, 404 U.S. 991 (1971) ............

Steiner v. Showboat Operating Co., 25 F.3d 1459

(9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995) ..

Trans World Airlines, Inc. v. Thurston, 469 U.S.

BEE IIIT Aumenciecnphaiailldidbenanenhduendyintiacetetipaaidunnbtcamencoes

Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir.

DUE) silictentitishdliiebisidinchabtodannieitioncanedaigectehopigtansesccees

Waltman v. International Paper Co., 875 F.2d 468

SE MEY BETEID anchichccnadecscrnccncnssiscinesnousescounsscensvenscccoes

Wrightson v. Pizza Hut of America, Inc., 99 F.3d

BEE TIE MII nichctsiniidncependeecscahetivocescbenceosensonece

Yeary v. Goodwill Indus.-Knorville, Inc., 107 F.3d

IIE: IIIT ieristerdnsad sthaienettasennebintegemoceseestocseees

Zenith Radio Corp. v. United States, 437 U.S. 443

EIEN cilssdidatelaniigdinhtnpbecciesedssmnbiecatdteisededieccvesecccscteoss

Statutes and regulations:

Age Discrimination in Employment Act of 1967,

NEA SS

Civil Rights Act of 1964, Pub. L. No. 88-532, § 703(a),

ESE TRESS Ue Ale ve ave EOS

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

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42 U.S.C. 200D0-2laN(1) .....00000ccceccccccrrrceseceeserseserecees

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Equal Pay Act, 29 U.S.C. 206(A)(1) .0......:cccccceceeeeeeees

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29 C.F.R.: .

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Section 1604.11() (1985) ..........ccccccccceceeesessesseeeeesees

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Miscellaneous: Page

142 Cong. Rec. $10,129-S10,139 (daily ed. Sept. 10,

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2 EEOC Compl. Man. (Oct. 1981) .........ccccceeereeseeeeees 14, 17

EEOC Dee. No. 81-16 (Jan. 1981), reprinted in EEOC

Dec. (CCH Employment Practices Guide) 4 6756

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In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-568

JOSEPH ONCALE, PETITIONER

v~.

SUNDOWNER OFFSHORE SERVICES,

INCORPORATED, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

AND THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq., prohibits discrimination in employment

because of an individual’s sex. The Equal Employ-

ment Opportunity Commission (EEOC) was estab-

lished by Congress to interpret and enforce Title VII.

The EEOC participated as amicus curiae in this case

in the court of appeals.

(1)

2

The Attorney General is responsible for enforcing

Title VII in cases in which the employer is a govern-

ment, a governmental agency, or a political subdivi-

sion. 42 U.S.C. 2000e-5(f)(1). The United States, in

its capacity as employer and otherwise, has a strong

interest in ensuring the fair and balanced enforce-

ment of the federal civil rights laws. In response to

the Court’s order inviting the Solicitor General to

express the views of the United States, the Solicitor

General filed a brief on behalf of the United States

and the EEOC suggesting that the petition for a writ

of certiorari be granted.

STATEMENT

1. Petitioner, Joseph Oncale, was employed by re-

spondent Sundowner Offshore Services, Inc. (Sun-

downer), on an offshore oil rig from August to

November 1991. Pet. App. 2. He filed the instant suit

in the United States District Court for the Eastern

District of Louisiana against Sundowner, his direct

supervisor John Lyons, and two co-workers, Danny

Pippen and Brandon Johnson. The complaint alleged

that respondents had subjected petitioner to sexual

discrimination and harassment in employment prac-

tices, and consequently had forced him to resign, in

violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seq. Pet. App. 1. Petitioner alleged

that he had been subjected both to a discriminatorily

hostile work environment and to quid pro quo harass-

ment because of his sex. His complaint recited three

specific instances of physical sexual harassment.

Ibid.

Discovery proceeded and respondents moved for

summary judgment, contending that, under Fifth Cir-

cuit precedent, petitioner’s claim was not actionable

under Title VII because petitioner was of the same

sex as the alleged harassers. J.A. 27, 33 (citing

Garcia v. Elf Atochem North America, 28 F.3d

446, 451 (1994); Giddens v. Shell Oil Co., No. 92-8533

(Dec. 6, 1993) (unpublished)). Respondents acknow!l-

edged that claims of quid pro quo sexual harassment

have been brought successfully in some district

courts under Title VII where the employee was male

and the supervisor was a male homosexual, but

respondents contended that was not the case here.

J.A. 35-36. Respondents also contended that, in any

event, petitioner could not make out a prima facie case

of hostile work environment harassment because

respondent Sundowner employed only males on the

platform where petitioner worked. J.A. 34. Respon-

dents submitted evidence that Sundowner did not

employ any females on its rigs. J.A. 41.

Petitioner opposed summary judgment, contending

that there is no blanket prohibition to recovery under

Title VII “by a male employee who is sexually har-

assed by other male employees who control the terms,

conditions and duration of [his] employment while a

fully informed [supervisor] take[s] no action.” J.A. 46.

Petitioner submitted his sworn testimony that, on or

about October 25, 1991, his supervisor Lyons physi-

cally assaulted him by placing his exposed penis on

petitioner’s head while Pippin held petitioner down

and Lyons told petitioner that he was going to “fuck

[petitioner] in [his] behind.” J.A. 76; see also J.A. 20.

Immediately after the incident, he informed a supervi-

sor about the harassment, but the supervisor took no

action. J.A. 77. The following day, Johnson held him

down while Lyons placed his exposed penis on peti-

tioner’s arm. J.A. 76; see also J.A. 20. Johnson him-

self testified that he had picked petitioner up, grabbed

d

him, and was holding him when Lyons told him to hold

petitioner there and threatened that he was going to

expose his_penis and put it on petitioner. J.A. 83, 84.

Johnson testified that he let petitioner go, however,

so that Lyons did not carry out that threat. J.A. 83,

84. Petitioner testified that while he was taking a

shower Pippin and Lyons got in with him and Pippin

lifted petitioner up and folded him over while Lyons

“rubbed a bar of soap between [his buttocks] and told

[him], ‘Yeah, we know you talked to daddy about it, but

we're going to fuck you anyway.” J.A. 67; see also

J.A. 20. Petitioner testified that he believed his su-

pervisor Lyons intended “[t]o have sex with [him], to

rape [him].” J.A. 70. When petitioner returned to

work after a few days off, he was again sexually har-

assed by verbal sexual advances, predominately from

Lyons, including threats of anal intercourse. J.A. 72-

73. He again told supervisors about the advances, but

nothing was done. J.A. 73. Petitioner resigned, stat-

ing on the separation form that he quit because of

sexual harassment. J.A. 79-80.

2. The district court granted respondents’ sum-

mary judgment motion and dismissed petitioner’s

claim. Pet. App. 10-15. Citing Garcia, supra, as bind-

ing circuit precedent, the district court ruled that

petitioner, “a male, has no cause of action under Title

VII for harassment by male co-workers.” Jd. at 14.'

3. The court of appeals affirmed. Pet. App. 1-7.

Although it acknowledged that the analysis in Garcia

' The district court also found that respondents Pippin and

Johnson could not be considered petitioner’s employer. Pet.

App. 14, 15 n.4, Although petitioner describes Pippin as his de

facto supervisor (Pet. 4, 5), he has not sought this Court's

review of that issue.

5

had been “rejected by various district courts,” id. at 4

& n.2, the court concluded that the prior panel

decision was binding precedent, and “bar{red] all

same-sex sexual harassment claims” under Title VII,

id. at 5-6.

SUMMARY OF ARGUMENT

Title VII’s coverage is sex-neutral. It protects em-

ployees from discrimination because of sex regardless

of the gender of the employer or employee. Title VII

affords such protection to both men and women, New-

port News Shipbuilding & Dry Dock Co. v. EEOC,

462 U.S. 669, 682 (1983), and the Court has never

suggested that protection depends on whether the

harasser and the employee are of opposite sexes.

There is no exemption from Title VII’s sex-neutral

coverage for cases of sexual harassment. That is,

Title VII's protection against discrimination in the

form of sexual harassment does not depend on

whether the harasser and employee are of opposite

sexes, so long as the discrimination by the employer

is “because of [the employee’s] sex.” The court of ap-

peals’ contrary ruling, categorically excluding any

Title VII sexual harassment claims involving an em-

ployee and harasser of the same sex, is contrary to

the plain language of the statute, the longstanding

and consistent interpretation of the Equal Employ-

ment Opportunity Commission (EEOC), and the ap-

proach of the other circuits that have considered the

issue.

In light of the erroneous legal standard underlying

the entry of summary judgment below, the judgment

should be reversed and the matter remanded for

further proceedings. Neither the fact that peti-

6

tioner’s harassers may not have been motivated by

homosexual attraction, nor the fact that petitioner

worked at an all-male worksite, automatically fore-

closes his claim that he was subject to a discrimina-

torily hostile work environment or to quid pro quo

harassment because of his sex.

ARGUMENT

TITLE VII’'S PROHIBITION AGAINST SEXUAL

HARASSMENT THAT CONSTITUTES SEX DIS-

CRIMINATION IN THE WORKPLACE PROTECTS

ALL EMPLOYEES, REGARDLESS OF THE SEX

OF THE HARASSER OR EMPLOYEE

1. The sole legal question presented in this case

can, and should, be decided by reference to the plain

text of the governing statute. Title VII of the Civil

Rights Act of 1964, Pub. L. No. 88-352, § 703(a), 78

Stat. 255, states, in relevant part, that “[i}t shall be an

unlawful employment practice for an employer”

to fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any

individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

sex, or national origin.

42 U.S.C. 2000e-2(a)(1). On its face, this provision

prohibits all who meet the statutory definition of the

term “employer” (42 U.S.C. 2000e(b)) from discrimi-

nating against either male or female employees

“because of” any of the statutory factors—race, color,

religion, sex, or national origin.

The Court has repeatedly recognized that Title

VII’s coverage is sex-neutral and cannot be inter-

7

preted to protect one sex of employees, but not the

other, from discrimination because of sex. In New-

port News Shipbuilding & Dry Dock Co. v. EEOC,

462 U.S. 669, 682 (1983), the Court quoted the text of

Title VII and unequivocally concluded: “Male as well

as female employees are protected against discrimina-

tion.” Jbid.* The Court explained that, as in a case

involving a female employee, an employment practice

violates Title VII’s “simple test” of discrimination if

it treats a male employee “in a manner which but for

that person’s sex would be different.” Jd. at 683 (quot-

ing City of Los Angeles Dep’t of Water & Power v.

Manhart, 435 U.S. 702, 711 (1978)). Cf. McDonald v.

Santa Fe Trail Transp. Co., 427 U.S. 273 (1976)

(holding that Title VII prohibits racial discrimination

in employment against white persons as well as

against nonwhites).

On its face, Title VII’s sex-neutral prohibition

against sex discrimination is not limited to discrimi-

nation by the opposite sex. It would have been a sim-

ple matter for Congress to limit the reach of Title

VII to discrimination between members of opposite

sexes by use of that phrase if that had been its

intention. See, e.g., 29 U.S.C. 206(d)(1) (Equal Pay

Act generally prohibits employer from paying wages

to employees at rate less than rate employer pays

2 The Court also noted that, although an amendment to

Title VII had clarified its applicability to pregnancy, that

amendment “did not remove or limit Title VII's prohibition of

discrimination on the basis of the sex of the employee—male or

female—which was already present in the Act,” i.e., from the

time of enactment. Newport News, 462 U.S. at 675-676 n.11.

8

to “employees of the opposite sex” for equal work);

38 U.S.C. 101(3) and (31) (defining surviving spouse

and spouse as a member of the opposite sex).

There is no validity to respondents’ suggestion .i..

in Opp. 10) that Title VII does not apply to same-sex

discrimination because members of the same sex

cannot discriminate against each other because of

sex. As this Court recognized in the context of racial

discrimination, “[bJecause 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

their group.” Castaneda v. Partida, 430 U.S. 482, 499

(1977). See also id. at 503 (Marshall, J., concurring)

(“Social scientists agree that members of minority

groups frequently respond to discrimination and

prejudice by attempting to disassociate themselves

from the group, even to the point of adopting the

majority’s negative attitudes towards the minority.

Such behavior occurs with particular frequency

among members of minority groups who have

achieved some measure of economic or political

success and thereby have gained some acceptability

among the dominant group.”) (citations omitted); id.

at 515-516 & n.6 (Powell, J., dissenting, joined by

Burger, C.J., and Rehnquist, J.) (favoring inference

that members of a group do not discriminate against

themselves, but rejecting suggestion “that persons in

positions of power can never be shown to have dis-

criminated against other members of the same ethnic

or racial group”). The Court thus long ago declared

invalid the behavioral presumption “that human

9

beings would not discriminate against their own

kind.” Jd. at 500.°

The Court has never suggested that an employee

cannot bring a Title VII sex discrimination action if

the discriminator is of the same sex. To the contrary,

in Johnson v. Transportation Agency, 480 U.S. 616

(1987), a Title VII claim was brought by a male em-

ployee who claimed he had been discriminated against

because of sex when a female employee was selected

for a promotion instead of him. The supervisor who

made that promotion decision was male, id. at 624-625,

as were the overwhelming majority of the employer's

officials, administrators, and professionals, id. at 621.

Although the Court ultimately ruled against the male

employee because it concluded that the challenged

employment decision had been made pursuant to a

valid affirmative action plan, the Court analyzed the

claim without any suggestion that such a same-sex

discrimination claim was not cognizable under Title

VII. Jd. at 626-642.

3% Moreover, same-sex discrimination may be motivated by

a variety of reasons other than animosity, and Title VII pro-

hibits such discrimination regardless of the underlying motive.

For example, in Manhart, supra, the Court invalidated, on

Title VII grounds, a pension system that presumably had been

motivated by a desire to benefit women as a group, but which

treated individual women differently from men. In Juterna-

tional Union, United Auto. Workers v. Johnson Controls, Inc.,

499 U.S. 187, 200 (1991), the Court held that a policy that

excluded women with child-bearing capacity from lead-exposed

jobs violated Title VII, as amended to prohibit pregnancy

discrimination, despite the ostensibly benign .nterests that had

motivated it. Cf. Cleveland Bd. of Educ. v. LaFleur, 414 U.S.

632 (1974) (striking down, on due process grounds, law that re-

quired women to take maternity leave).

10

2. Sexual harassment in the workplace constitutes

employment discrimination in violation of Title VII if

a supervisor makes “[{uJnweleome sexual advances,

requests for sexual favors, and other verbal or physi-

cal conduct of a sexual nature,” and submission to

such conduct is made “explicitly or implicitly a term

or condition of an individual’s employment,” or is

“used as the basis for employment decisions affecting

such individual.” 29 C.F.R. 1604.11(a)(1) and (2) (quid

pro quo harassment). Also, sexual harassment in

the workplace constitutes employment discrimination

under Title VII if “such conduct has the purpose or

effect of unreasonably interfering with an individ-

ual’s work performance or creating an intimidating,

hostile, or offensive working environment.” Meritor

Savings Bank, FSB vy. Vinson, 477 U.S. 57, 65 (1986)

(quoting 29 C.F.R. 1604.11(a)(3) (hostile work environ-

ment harassment)).

There is no exemption from Title VII’s sex-neutral

coverage for cases in which discrimination takes the

form of sexual harassment. In Vinson, 477 U.S. at 64,

the Court unambiguously declared that, “{w]ithout

question, when a supervisor sexually harasses a sub-

ordinate because of the subordinate’s sex, that super-

visor ‘discriminate[s]’ on the basis of sex.” In reject-

ing the argument that Title VII should cover sexual

harassment cases only if there is economic or tangi-

ble loss, the Court analyzed the coverage of Title VII

and sexual harassment claims in wholly sex-neutral

terms. The Court emphasized that the fact that Title

VII is phrased as a prohibition against discrimination

in the “‘terms, conditions, or privileges of employ-

ment’ evinces a congressional intent ‘to strike at the

entire spectrum of disparate treatment of men and

women’ in employment.” /bid. (emphasis added) (cita-

11

tions omitted). The Court quoted with approval a

lower court’s conclusion that subjecting members of

either sex to sexual harassment violates Title VII:

“Surely, a requirement that a man or woman run a

gauntlet of sexual abuse in return for the privilege of

being allowed to work and make a living can be as

demeaning and disconcerting as the harshest of racial

epithets.” Jd. at 67 (quoting Henson v. City of Dun-

dee, 682 F.2d 897, 902 (11th Cir. 1982)) (emphasis

added). The Court also found guidance in the EEOC’s

sex-neutral guidelines defining sexual harassment as

a form of sex discrimination prohibited by Title VII.

Id, at 65 (quoting guidelines’ definitions at 29 C.F.R.

1604.11(a)).

When the Court again addressed the definition of a

discriminatorily abusive work environment under

Title VII, in Harris v. Forklift Systems, Inc., 510

U.S. 17 (1993), it again spoke of Title VII’s coverage

of sexual harassment claims in wholly sex-neutral

terms. It repeated Vinson’s declaration that Title

VII had been enacted to “strike at the entire spec-

trum of disparate treatment of men and women in

employment.” Jd. at 21 (emphasis added) (citations

omitted). Moreover, the Court recognized the serious

consequences sexual harassment may have on an em-

ployee’s career—without any suggestion that the ex-

istence of injury from such harassment in the work-

place, or Title VII’s availability to eradicate it, de-

pends in any way upon the sex of the employee or

harasser. To the contrary, the Court described the

universal protection of Title VII for all employees

against harassment that alters their working condi-

12

tions based on any of the statutorily proscribed

factors:

A discriminatorily abusive work environment,

even one that does not seriously affect employees’

psychological well-being, can and often will

detract from employees’ job performance, discour-

age employees from remaining on the job, or keep

them from advancing in their careers. Moreover,

even without regard to these tangible effects, the

very fact that the discriminatory conduct was so

severe or pervasive that it created a work environ-

ment abusive to employees because of their race,

gender, religion, or national origin offends Title

VII’s broad rule of workplace equality.

Id. at 22.

There are a myriad of examples of employment

discrimination involving members of the same sex, in

both the harassment context and otherwise, that

clearly are prohibited by Title VII. Consider, for ex-

ample, a male supervisor who conditions a male em-

ployee’s promotion on his agreement to date the

supervisor’s daughter. Or, to place this example in

the harassment context, assume the employee refuses

to date the daughter and the supervisor launches a

campaign of harassment against the employee, includ-

ing unrelenting sexual taunts and innuendos in front

of co-workers and a flood of sexually explicit materi-

als at his workplace. In both instances, the supervi-

sor discriminates against the employee with respect

to terms and conditions of employment because of that

employee’s sex. The harm inflicted on the employee

is no different, and the discrimination no less evident,

than if the supervisor had been a woman with a

daughter.

13

Consider alternatively the example of a female

supervisor who believes it will advance her career if

she aligns herself with the male-dominated manage-

ment force rather than her female subordinates;

consequently, her evaluation reports on female subor-

dinates deliberately do not reflect the high quality of

their work. Or, to place the example in the harass-

ment context, assume she harasses the female subor-

dinates by severe and pervasive sexually explicit

intimidation and ridicule, in front of other employees,

intending that it will interfere with, and lower the

quality of, the female subordinates’ work. Again, the

discrimination based on sex in those circumstances

is no less evident or damaging than if the supervisor

had been a man who altered his evaluation reports

of female subordinates or sexually harassed them

because of his belief that women do not belong in the

workplace.

The irrelevance of the sex of a harasser is most

obvious when one considers that a hostile work envi-

ronment claim may arise, for example, either from (a)

harassment by an anonymous co-worker which the

employer refuses to investigate or remedy (e.g., an

unrelenting barrage of sexually denigrating graffiti

on an employee’s locker, daily posting of sexually

explicit cartoons involving the employee), or (b) har-

assment that is aimed at someone other than the em-

ployee who brings the claim (e.g., against other em-

ployees or customers).‘ When the Vinson Court first

* For examples of hostile work environment cases includ-

ing anonymous harassment and harassment aimed at others

or at the workplace generally, see, e.g., Andrews v. City of

Philadelphia, 895 F.2d 1469, 1482, 1483-1486 (3d Cir. 1990)

(reversing district court rejection of Title VII claim that work

environment was “so heavily charged with sexism that it was

14

discussed Title VII’s coverage of hostile work

environment claims based on sexual harassment, it

quoted with approval Rogers v. EEOC, 454 F.2d 234

(5th Cir. 1971), cert. denied, 406 U.S. 957 (1972),

which, the Court explained, had held “that a Hispanic

complainant could establish a Title VII violation by

intimidating, hostile, and offensive,” in part because district

court failed to give appropriate consideration to conduct other

than explicit sexual advances toward the employees, including

conduct such as use of terms derogatory and insulting to

women generally and anonymous posiing of pornographic pic-

tures aimed both at particular plaintifis and in common areas);

Waltman v. International Paper Co., 875 F.2d 468, 477 (5th

Cir. 1989) (reversing grant of summary judgment in em-

ployer’s favor, based on evidence that included pervasive

anonymous sexual graffiti, and noting that, “{ajlthough not all

. the graffiti was directed at [plaintiff], it is all relevant to her

claim”; other relevant evidence not aimed directly at plaintiff

included posting of pornographic drawings and display of used

tampons, id. at 471; another female worker allegedly was

ceecined outs haha “Geamas din tae aa lens

even encouraged, her fellow workers’ sexual behavior,” id. at

473); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp.

1486, 1493-1494, 1495 (M.D. Fla. 1991) (judgment for Title VII

plaintiff based not only on evidence of conduct aimed directly

at plaintiff, but also on evidence of pervasive posting, often

surreptitiously and thus anonymously, of graffiti and nude and

partially nude photographs of women in “sexually suggestive

or submissive poses” throughout workplace such that it

constituted “a visual assault on the sensibilities of female

workers * * * that did not relent during working hours”); ef.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358-1359 (11th Cir.

1982) (Title VII claim of hostile work environment because of

racial harassment based on evidence not only of racial epithet

against employee but also of repeated and continuous use of

term “nigger” and other racially abusive language to refer to

customers and for other purposes at workplace); see also 2

EEOC Compl. Man. § 615.3(a\(3) (Oct. 1981).

15

demonstrating that her employer created an offensive

work environment for employees by giving discrimi-

natory service to its Hispanic clientele.” Vinson, 477

U.S. at 66. The Court went on to quote Rogers as

follows:

(T)he phrase “terms, conditions or privileges of

employment” in [Title VII] is an expansive con-

cept which sweeps within its protective ambit the

practice of creating a working environment heav-

ily charged with ethnic or racial discrimination: —~

. . « One can readily envision working environ-

meats so heavily polluted with discrimination as

to destroy completely the emotional and psycho-

logical stability of minority group workers.

Ibid. (quoting Rogers, 454 F.2d at 238). The Court

observed that subsequent cases had applied that prin-

ciple to harassment based on race, and “[njothing in

Title VII suggests that a hostile environment based

on discriminatory sexual harassment should not

be likewise prohibited.” Jbid.; see also Patterson v.

McLean Credit Union, 491 U.S. 164, 178-181 (1989)

(explaining that, in Vinson, the Court implicitly

approved applicability of Title VII sexual harassment

standards to hostile work environment claim based on

racial harassment).

Thus, the relationship between the employee and

the person creating the hostile work environment is

not the focus of the cause of action. Rather, the focus

of the prohibition against hostile work environment

sexual harassment is on “the relationship between an

employee and his working environment.” Rogers, 454

F.2d at 238. The sex of the harasser matters not at all

“(when the workplace is permeated with ‘discrimina-

tory intimidation, ridicule, and insult,’ * * * that is

16

‘sufficiently severe or pervasive to alter the condi-

tions of the victim’s employment,’” because of his or

her sex. Harris, 510 U.S. at 21 (quoting Vinson, 477

U.S. at 65, 67).

3. The Fifth Circuit’s holding is contrary to the

EEOC’s longstanding and consistent interpretation.

The EEOC has long recognized that harassment on

the basis of sex is a violation of Title VII. In 1980,

it determined that there was a need for guide-

lines because sexual harassment “continue[d] to be

especially widespread.” 45 Fed. Reg. 25,024 (1980).

Shortly after promulgation of those regulations

(published at 29 C.F.R. 1604.11), the EEOC was called

upon to resolve a claim of same-sex sexual harass-

ment. In January 1981, the EEOC reaffirmed its

“long standing position * * * that Title VII does not

cover discrimination which occurs because of an indi-

vidual’s sexual preference,” but it recognized that

claims of same-sex harassment were not precluded

where the harassment could be shown to be because of

an individual’s sex. EEOC Dec. No. 81-16 (Jan. 1981),

reprinted in EEOC Dee. (CCH Employment Prac-

tices Guide) 4 6756, at 4796 (1983 ed.). The EEOC

emphasized that, under Title VII, “a discriminatory

practice is unlawful when it occurs because an indi-

vidual is male or female,” and it concluded that, if the

complaining employee, a male, had submitted suffi-

cient evidence to support his claim that he had been

laid off because he had rejected the unwanted sexual

advances of his supervisor, a male, Title VII would

have been violated and the employer would have been

responsible for the actions of the supervisor. Id. at

4796-4797. Soon thereafter, in its Compliance Man-

17

ual’s directives regarding sexual harassment, the

EEOC further specified:

The victim does not have to be of the opposite sex

from the harasser. Since sexual harassment is a

form of sex discrimination, the crucial inquiry is

whether the harasser treats a member or mem-

bers of one sex differently from members of the

other sex. The victim and the harasser may be of

the same sex where, for instance, the sexual har-

assment is based on the victim’s sex (not on the

victim’s sexual preference) and the harasser does

not treat employees of the opposite sex the same

way.

2 EEOC Compl. Man. § 615.2(b)(3) (Oct. 1981) (citing

EEOC Dec. No. 81-16 (Jan. 1981)).

Like the EEOC’s sexual harassment guidelines on

which Vinson relied, the EEOC’s 1981 decision and

subsequent compliance directive on same-sex sexual

harassment, “while not controlling upon the courts

by reason of their authority, do constitute a body of

experience and informed judgment to which courts

and litigants may properly resort for guidance.”

Vinson, 477 U.S. at 65 (quoting General Elec. Co. v.

Gilbert, 429 U.S. 125, 141-142 (1976)). As a longstand-

ing agency interpretation, the EEOC’s interpretation

is entitled to particular deference. See Brown v.

Gardner, 513 U.S. 115, 122 (1994) (citing Zenith

Radio Corp. v. United States, 437 U.S. 443, 450

(1978)); Nashville Gas Co. v. Satty, 434 U.S. 136, 142-

143 n.4 (1977). See also EEOC vy. Arabian American

Oil Co., 499 U.S. 244, 257 (1991) (deference afforded

EEOC guidelines depends on, inter alia, the “consis-

tency with earlier and later pronouncements”) (quot-

ing Gilbert, 429 U.S. at 142).

18

4. In light of the plain, unambiguous text of Title

VII, this Court’s consistent interpretation of that

text as sex-neutral with regard to the statute’s

coverage, and the EEOC’s longstanding and consis-

tent interpretation of Title VII to the same effect,’

the Fifth Circuit erred in holding that Title VII

“bar(s] all s.. e-sex sexual harassment claims.” Pet.

App. 5. All other courts of appeals that have consid-

ered the issue have either explicitly rejected such a

blanket prohibition, or have suggested or implied that

they would.°

5 The Court has noted the limited legislative history sur-

rounding enactment of Title VII. See Meritor Savings Bank,

FSB vy. Vinson, 477 U.S. 57, 63-64 (1986) (prohibition against

sex discrimination added to Title VII “at the last minute on the

floor of the House of Representatives” so that “we are left with

little legislative history to guide us in interpreting the Act’s

prohibition against discrimination based on ‘sex’”).

6 See Doe v. City of Belleville, No. 94-3699, 1997 WL 400219,

at *5, *8 (7th Cir. July 17, 1997) (expressly rejecting blanket

prohibition against same-sex sexual harassment claims under

Title VII); Fredette v. BVP Management Assoc., 112 F.3d

1503, 1510 (11th Cir. 1997) (same); Yeary v. Goodwill Indus.-

Knorville, Inc., 107 F.3d 443, 448 (6th Cir. 1997) (same);

Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th

Cir. 1996) (same); Quick v. Donaldson Co., 90 F.3d 1372, 1378-

1379 (8th Cir. 1996) (same); Steiner v. Showboat Operating Co.,

25 F.3d 1459, 1464 (9th Cir. 1994) (“although words from a man

to a man are differently received than words from a man to a

woman, we do not rule out the possibility that both men and

women * * * have viable claims against [the male supervisor]

for sexual harassment”), cert. denied, 513 U.S. 1082 (1995);

Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d

Cir. 1993) (Van Graafeiland, J., concurring) (“harassment is

harassment regardless of whether it is caused by a member of

the same or opposite sex”), cert. denied, 510 U.S. 1164 (1994);

Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192 (Ist

19

The Fourth Circuit, while acknowledging that

Title VII is sex-neutral, and therefore that its

protection may not categorically be denied to an

employee of the same sex as his or her harasser, has

limited same-sex harassment claims to instances in

which the harasser is a homosexual, Wrightson v.

Pizza Hui of America, Inc., 99 F.3d 138, 141-143

(1996), and precluded same-sex harassment claims

where the harasser and target of the harassment are

hetvrosexuals, McWilliams v. Fairfax County Board

of Supervisors, 72 F.3d 1191, 1195, cert. denied, 117 S.

Ct. 72 (1996). That distinction, however, cannot be

squared either with the plain text of Title VII or with

the purpose underlying Title VII to provide equal

employment opportunity by protecting individuals

Cir. 1990) (in same-sex case, court states “there is a cause of

action for sexual harassment,” but concludes that employee had

not shown conduct was “sufficiently severe or pervasive”);

Bundy v. Jackson, 641 F.2d 934, 942 n.7 (D.C. Cir. 1981)

(rejecting argument that harassment of employee by homosex-

ual supervisor of same gender is not sex discrimination and

noting that “in each instance the question is * * * would the

complaining employee have suffered the harassment had he or

she been of a different gender?”); Barnes v. Costle, 561 F.2d

983, 990 n.55 (D.C. Cir, 1977) (noting the possibility of action-

able sexual harassment where “a subordinate of either gender”

is harassed “by a homosexual superior of the same gender”).

* Other circuits have recognized same-sex sexual harass-

ment claims in cases where the harasser is homosexual and

have reserved judgment on whether they would recognize such

claims where a same-sex harasser was heterosexual. Fredette,

112 F.3d at 1507; Yeary, 107 F.3d at 447-448. Two circuits have

held that same-sex sexual harassment claims are cognizable

irrespective of the sexual orientation of the harasser. City of

Belleville, 1997 WL 400219, at *18-*25; Quick, 90 F.3d at 1378-

1379.

20

fram workplace discrimination, including harass-

ment, because of sex.

An employee can state a Title VII claim based on

harassment by a supervisor (or harassment by a co-

worker that the employer fails to remedy) without

alleging that the harassment was motivated by sexual

attraction. That is clear from the Court’s recogni-

tion of the types of sexual harassment at issue in

Vinson and Harris. The sexual harassment alleged

in Vinson apparently was motivated by the harasser’s

desire to engage in sexual intercourse with the

female employee. See 477 U.S. at 60. The sexual har-

assment in Harris, however, was motivated by the

harasser’s apparent desire to humiliate women. See

510 U.S. at 19 (supervisor’s comments to employee

included: “[y]Jou’re a woman, what do you know,” “[wle

need a man as the rental manager,” calling her “a

dumb ass woman”; making her and other women the

target of unwanted sexual innuendos about their

clothing, suggesting that she obtained business deals

through sex). Also, for example, in Quick v. Donald-

son Co., 90 F.3d 1372, 1376 (8th Cir. 1996), the

employee alleged that he had been subjected to

repeated physical assaults wherein other hetero-

sexual workers had grabbed his testicles and verbally

harassed him. He did not allege that his harassers

had made any sexual advances toward him based on

their attraction to him or that they were attracted to

him. He contended that because the physical har-

assment “was directed only at the area of male sexual

organs, he would not have been subjected to it but for

being male.” Jbid. The court held that “[e|vidence

that members of one sex were the primary targets of

the harassment is sufficient to show that the conduct

was gender based,” id. at 1378, and found that it was

21

sufficient, for purposes of summary judgment, that

the physical assaults had been “aimed at [the plain-

tiff’s] sexual organs, his testicles * * * squeezed so

hard on one occasion that he almost passed out from

the pain,” and he had been “verbally taunted,” id. at

1379. As discussed above, a supervisor may also have

personal or career-related motives for sexually har-

assing an employee of the same sex because of the

employee’s sex without being sexually attracted to

that employee. See pp. 12-13, supra; cf. Goodman v.

Lukens Steel Co., 482 U.S. 656, 667-669 (1987) (fact

that union’s failure to file grievances on behalf of

black workers was not motivated by animosity toward

blacks, but rather by strategic decision about how to

deal with employer, did not make union’s differential

treatment based on race any less discriminatory).

At bottom, the question under Title VII is whether

the choice of the target or the manner of the sexual

harassment was “because of [the employee’s] sex,” in

that the particular employee would not have been

subjected to the same harassment had he or she been

of the opposite sex. Regardless of whether the under-

lying motive for the sexual harassment was attrac-

tion, hostility, disrespect, or benevolence, such har-

assment violates Title VII’s “simple test” of discrimi-

nation because it would be treating that employee “in

a manner which but for the person’s sex would be

different.” Newport News, 462 U.S. at 683 (quoting

Manhart, 435 U.S. at 711).

* In light of Congress’s refusal to extend Title VII to claims

based upon sexual orientation, see 142 Cong. Rec. S810,129-

$10,139 (daily ed. Sept. 10, 1996) (S. 2056, a bill to prohibit

employment discrimination on the basis of sexual orientation,

not passed by Senate), it would be ironic if the availability of

a Title VII remedy turned on the sexual orientation of the

22

5. The Seventh Circuit recently observed that “[a]

concern that seems to have motivated a number of

courts in refusing to recognize cases of same-sex

sexual harassment is that courts will be deluged with

complaints stemming from horseplay and rough

language among men.” Doe v. City of Belleville, No.

94-3699, 1997 WL 400219, at *26 (July 17, 1997). That

court correctly noted, however, that “very similar

concerns were expressed when courts rejected the

first claims of sexual harassment brought by women.”

Ibid. We agree with the Seventh Circuit that, as with

claims of opposite-sex sexual harassment, claims of

same-sex sexual harassment based on the occa-

sional off-color comment or trivial conduct will be

easily distinguishable from actionable claims. As in

opposite-sex cases,

“mere utterance of an... epithet which engen-

ders offensive feelings in a employee,” * * *

does not sufficiently affect the conditions of

employment to implicate Title VII. Conduct that

is not severe or pervasive enough to create an

objectively hostile or abusive work environment—

an environment that a reasonable person would

find hostile or abusive—is beyond Title VII's

purview. Likewise, if the victim does not subjec-

tively perceive the environment to be abusive, the

conduct has not actually altered the conditions of

the victim’s employment, and there is no Title

VII violation.

harasser. Such a condition would, moreover, add significant

complexity to Title VII proceedings by requiring, inter alia, a

trial as to an alleged harasser’s sexual orientation.

23

Harris, 510 U.S. at 21-22 (quoting in part Vinson, 477

U.S. at 67). The trier of fact “must determine the

existence of sexual harassment in light of ‘the record

as a whole’ and ‘the totality of circumstances,’ such as

the nature of the sexual advances and the context in

which the alleged incidents occurred.” Vinson, 477

U.S. at 69 (quoting 29 C.F.R. 1604.11(b) (1985)).

6. Because the courts below relied on an erroneous

legal standard in granting respondents summary

judgment, the Court should reverse the judgment and

remand the case for further proceedings. That dispo-

sition would afford the courts below the opportunity

to address, in the first instance, the various eviden-

tiary and other issues that may arise in connection

with petitioner’s same-sex harassment claim.

Respondents have suggested (Br. in Opp. 13-17),

however, that, even under the correct standard of law,

petitioner’s claim must fail because the oil rig on

which he worked employed only males. This, how-

ever, mistakes a challenge of proof for a statement of

legal principle. Title VII protection is not denied to

employees in single-sex workplaces. Regardless of

the demographic makeup of a workforce, an employer

violates Title VII if it discriminates against an em-

ployee because of the employee’s sex.

Comparative evidence is not the sole means of

establishing that an employee was treated “in a man-

ner which but for [his] sex would be different.” New-

port News, 462 U.S. at 683 (quoting Manhart, 435

U.S. at 711). Indeed, in Vinson and Harris, the Court

did not cite any evidence that the female employees

had alleged or demonstrated that the harassing

supervisor did not make similar advances to, or other-

wise harass, male employees.

24

Discrimination can be proven through direct evi-

dence of the employer’s discriminatory bias. See

County of Washington v. Gunther, 452 U.S. 161, 179

(1981) (Congress could not have intended to insulate

from Title VII redress a situation in which “an em-

ployer hired a woman for a unique position in the com-

pany and then admitted that her salary would have

been higher had she been male”).” Or there may be

other types of comparative evidence: suppose, for

example, respondent Sundowner employed females at

other locations, and it acted aggressively to stop

harassment when female employees at those sites

complained about sexual harassment, but it ignored

petitioner’s comparable complaints.

The current evidentiary record does not automati-

cally preclude petitioner from prevailing on a claim of

same-sex harassment in violation of Title VII. The

Court should resolve the legal question presented,

reverse the judgment below, and remand the case for

the lower courts to address the matters of proof.

* See generally Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 121-125 (1985) (direct evidence used to establish

that practice is discriminatory on its face under Age Dis-

crimination in Employment Act of 1967, 29 U.S.C. 621 et seq.);

Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (prima

facie case of sex discrimination is shown by evidence that

officials involved in decision submitted comments that

“stemmed from sex stereotypes”); Sprogis v. United Air Lines,

Inc., 444 F.2d 1194, 1198 (7th Cir.) (invalidating requirement

that flight attendants be unmarried; “|njor is the fact of

discrimination negated by [airline’s] claim that the female

employees occupy a unique position so that there is no distine-

tion between members of the opposite sexes within the job

category”), cert. denied, 404 U.S. 991 (1971).

25

CONCLUSION

The judgment of the court of appeals should be

reversed and the case remanded for further

proceedings.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

C. GREGORY STEWART ISABELLE KATZ PINZLER

General Counsel Acting Assistant Attorney

J. RAY TERRY, JR. General

Deputy General Counsel SETH P. WAXMAN

GWENDOLYN YOUNG REAMS Deputy Solicitor General

Associate General Counsel BETH S. BRINKMANN

CAROLYN L. WHEELER Assistant to the Solicitor

Assistant General Counsel General ‘

PAUL BOGAS

Attorney

Equal Employment

Opportunity Commission

AUGUST 1997