Amicus Curiae Brief — Webber v. Kansas

Supreme Court of the United States

OCTOBER TERM, 1996

JOSEPH ONCALE,

Petitioner,

vs.

SUNDOWNER OFFSHORE SERVICES, INC.,

JOHN LYONS, DANNY PIPPEN, and

BRANDON JOHNSON,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL

EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF PETITIONER

Of Counsel: MARGARET A. HARRIS

ANNE GOLDEN Counsel of Record

1740 Broadway, 25th Floor 3223 Smith, Suite 308

New York, New York 10019 Houston, Texas 77006

(212) 489-8230 (713) 526-5677

VICTORIA L. HERRING

2600 Grand Avenue, #200

Des Moines, lowa 50312

(515) 280-9667

Counsel for Amicus Curiae National Employment

Lawyers Association

LIST OF PARTIES

. Joseph Oncale, Petitioner.

_ Sundowner Offshore Services, Inc., Respondent.

. John Lyons, Respondent.

. Danny Pippen, Respondent.

Brandon Johnson, Respondent.

ws ww N =

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...<ccsscocsssossssssssssesneseeee

i 8 os 5 iii

TABBLE. COR CORT EIT S nanan senccncnceneeee v

TABLE OF AUTHORITIES .......scsssosocsoossseeeeeeeeeee vii

pS ss ITE I ie 1

SSE OO

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED .....ccccccssssssss0seeeeeeesee 2

INTEREST OF AMICUS CURIAE....ccccocooocoosossssssseee 2

STATEMENT OF CASE o2nacsscssscosccccccsesccsssseceersenssse 3

SEE ERRATA 4

I. WHETHER JOSEPH ONCALE WAS

C. The Allegations State Every Element

of a Wiable Title VII Claim................... ws)

Il. THE DECISION BELOW

ERRONEOUSLY CARVED OUT AN

ESTABLISHED PRINCIPLES OF LAW..... 10

A. Individuals in Majority Groups Can Be

2

Victimized by Di

TORR eee eweee

B. Members of One Group Can

Ill. THE FEARED “HORSEPLAY” EFFECT...

IV. PROVING MOTIVATION IN SAME-SEX

Page

12

12

vii

TABLE OF AUTHORITIES

Cases: Page

Alvey v. Rayovac Corp., 922 F. Supp. 1315 (W.D.

Te, BI ciccntnccrseeenenapssorensrnensesncserenetenesennassosees 16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(19BG) «.<.ccneseeceesesceesesosvsescscsnssccssssossoseoesonenenesscseoscess 7

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d

7), 20

Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th

6, ee 17

Burns v. McGregor Elec. Indus., 955 F.2d 559 (8th

Cie. 1992) (Beavis 2) ....000000veeceecsccsereccsecencesrssesesseees 16

Burns v. McGregor Elec. Indus., 989 F.2d 959 (8th

Cie. 1993) (Bearms M1) ...2..00..c.0r.cceecsoreerscssreseesersereeees 15

Callanan v. Runyon, 75 F.3d 1293 (8th Cir. 1996) ... 16

Castaneda v. Partida, 430 U.S. 482 (1977)............... 12, 13

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 7

Connecticut v. Teal, 457 U.S. 440 (1982) ........-.00000 19

Craig v. Boren, 429 U.S. 190 (1976)........-000ee-seeeeeeees 11

Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.

ee 13

DeAngelis v. El Paso Mun. Police Officers Ass'n,

51 F.3d (Sth Cir.), cert. denied, 116 S. Ct. 473

(BR vecccccccscccrccsecsesnrsrectonscsscsnesosecansnssnsenenscrocseesnses 16-17

DeLesstine v. Fort Wayne State Hosp., 682 F.2d

130 (7th Cir.), cert. denied, 459 U.S. 1017 (1982) 14

Doe v. City of Belleville, 1997 WL 400219 (7th Cir.

ODA) ncceccscsccsscsescsscsseseesecesensessesossssssssssessesseenesesees 5, 9, 19-20

Cases: Page

Fredette v. BVP Management Assocs., 112 F.3d

1503 BEER OBIT) ccccnciisicinninttiinceiioenicsoniannsonaee 17

Furnco Constr. Corp. v. Waters, 438 U.S. 567

(FFF acctccnsanasisineniiaitnciniiaiadiiitii leit ta 13

Garcia v. Elf Atochem North America, 28 F 3d 446

Cn OS. 06 iti entities 12

Goluszek v. H.P. Smith, 569 F. Supp. 1452 (N.D. Ill.

SUNDIID crecibisscterinnnsnsbelapubtitinetetiiiiiieatiniiaiak tiated ia 12

Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.

FOI vctichepeiniisciisiricilinlaatalicn daca ha 4, 16

Harris v. Forklift Sys., Inc., 510 U.S. 17

CBW Pricicensctisncsitinleitgichiblitiantdbisaaiibinalintat chute 2, 4-5, 8, 15, 16

Hazen Paper Co. v. Biggins, 508 U.S. 948 (1993)... 2

Hill v. Mississippi State Employment Serv., 918

BE USSD Cee, WE wrsetsictiteithciettatnttrrans ents 13

Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745

(4th Cir.), cert. denied, 117 S. Ct. 70 (1996).......... 9,18

Horn v. Duke Homes, Div. of Windsor Mobile

Homes, Inc., 755 F.2d 599 (7th Cir. 1985)............ s

Intlekofer v. Turnage, 973 F.2d 773 (8th Cir. 1992) . 4

Jenson v. Eveleth Taconite Co., 139 F.R.D. 657 (D.

FOE E ea HE Bis Puneet TO ops 5

Johnson v. Transp. Agency, 480 U.S. 616 (1987)... 5-6, 11, 13

Jordan v. Wilson, 649 F. Supp. 1038 (M.D. Ala.

i ST EEL Se, ITT IN DT eta 13

Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir.

PinaiPbcruiscsiningsntitssibintaaiiinisiatsidbenaieasipes etiilan bien, 12

ix

Cases: Page

on v. Roadway Express Inc., 802 F.2d 1250 2

(Oth Cir. 1986) ......sccccccsereesesssssnsneseensnsensnsnsnssenenes

Los Angeles Dep't of Water & Power v. Manhart,

435 U.S. 702 (1978).......c-cecsesssssesrereerssessseseesesnenees 11

Matsushita Elec. Indus. Corp. v. Zenith Radio ‘

Corp., 475 U.S. 574 (1986) ...ccsesvssncnssnerreneneeneenenns

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. ve

273 (1976) ..cccssevscsescsrsrsseresessrsrssessenssessnsnsnssasssonersess .

McDonnell Douglas v. Green, 411 U.S. 792 (1973) . 4

McKennon v. Nashville Banner Publ'g Co., 513 .

U.S. 352 (1995). ..ccsccrcesscceseseeesesssenssnesnssseseseseensnsnes

McKinney v. Dole, 765 F.2d 1129 (D.C. Cir. 1985).. 18

len v. Wisconsin Educ. Ass'n Council, 830

F.2d 659 (7th Cir. 1987), cert. denied, 485 U.S. :

914 (19B8).......cccccecssvssvsseseresssnsnsssenensnsesnsnsessnensnenes

McWilliams v. Fairfax County Bd. of Supervisors,

72 F.3d 1191 (4th Cir.), cert. denied, 117 S. Ct.

yo aga ts Tae ae 9,15

° > aaa cementite ate 4,8, 9, 15, 16

Murray v. Thistledown Racing Club, Inc., 770 F.2d .

ee ea

Nash v. Electrospace Sys., Inc, 9 F-34401 (SthCit.

eR ee OR ELE: LEI ’

Newport News Shipbuilding & Dry Dock v. EEOC, x

PTR ss Aaa ea ETE

Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994)........0 9,20

Notari v. Denver Water Dep't, 971 F.2d 585 (10th 2

hs salina SE

x

Cases: Page

O'Connor v. Consol. Coin Caterers Corp., 116 S.

COR) Be Cire asincdierretesimeneinniesetensesctnniibiiihitiacines 2,14

Orr v. Orr, 440 U.S. 268 (1979).......cccccccsceseeecerseenees 11

Oubre v. Entergy Operations, Inc., 117 S. Ct. 1466

(SED EP cnsarnnsntvitiiatonidiniiebintdianititiiiamiibliamapisdrticinsien 2

Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir.

SED ccocimeainsccitusnbiiienintintitilsidiiainineiiiiiiltdbiiidamidaasiates 15, 18

Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997)...... 2

Steiner v. Showboat Oper. Co., 25 F.3d 1459 (9th

Ce. FOE) ccntcnviniososaitinnninidslinininiliiniadndlaitatintnistninaionn 5

United States v. Diebold, Inc., 369 U.S. 654 (1962).. 7

Veatch v. Northwestern Mem’! Hosp., 730 F. Supp.

SP GPE Gils CUD schneadsntisctertaitinitalaseccccerscce+ses 13

Wabun-Inini v. Sessions, 900 F.2d 1234 (8th Cir.

Fee Ui scicnsincnseenpenieuttagninetenitindamilnebalibtamdsnesieceuses 7

Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991)....... 6, 11, 13

Wrightson v. Pizza Hut, 99 F.3d 138 (4th Cir. 1996) 18

Yeary v. Goodwill Indus. , 107 F.3d 443 (6th Cir.

DOH ihcnssiensinisnisiplbientiibeniniapiptatipeiandidiesiiiiemiinleiiaiais 18

Statutes:

Bais Bi ictinatnemneiinnnieniotiinntnamnet 1-2

a ee HEED wcidiintiniaentncinntstninisinenditichineines 2

Be DBA, Be ticitictntinninctitiidentintegsemane 2

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e-2(a)(1)..............00..- 2, passim

Other Authorities:

Fed. R. Civ. P. 35. ...cssececesesessssensnensnsnsnsnenensnersnnnenenenens

Fed. R. Civ. P. 56(€) ....-+-:ssessesssensersnensnsnenennsnenenennnnss

United States Supreme Court Rule 10(C).......-.----+-+

i i and Statistical Manual of Mental

Fourth Ed. (1994 Amer. Psychiatric

19

No. 96-568

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

JOSEPH ONCALE,

Petitioner,

vs

SUNDOWNER OFFSHORE SERVICES, INC.,

JOHN LYONS, DANNY PIPPEN, and

BRANDON JOHNSON,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL

EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF PETITIONER

OPINION BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit, rendered May 20, 1996, is reported at 83 F.3d

118. The opinion of the United States District Court for the

Eastern District of Louisiana, rendered March 24, 1995,

which the court of appeals affirmed, is not reported.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit

issued its opinion and entered judgment on May 20, 1996.

The petitioner filed a timely Petition for Writ of Certiorari

within 90 days of the judgment, pursuant to 28 U.S.C.

2

§§ 1214 and 2101(c) and Supreme Court Rule 10(c). This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(b).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This action involves Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e-2(a)(1), but without

reference to the amendments enacted by the Civil Rights Act

of 1991.

INTEREST OF AMICUS CURIAE

The National Employment Lawyers Association (NELA) is

a voluntary membership organization of over 2,000 lawyers

who regularly represent employees in labor, employment, and

civil rights disputes. NELA is one of the largest organizations

in the United States whose members litigate and counsel indi-

viduals, employees, and applicants on claims arising out of

the workplace. As part of its advocacy efforts, NELA has

filed numerous amicus curiae briefs before this Court, singly

or jointly with other amici. Some recent cases are Oubre vy.

Entergy Operations, Inc., 117 S. Ct. 1466 (1997); Robinson v.

Shell Oil Co., 117 S. Ct. 843 (1997); O’Connor v. Consoli-

dated Coin Caterers Corp., 116 S. Ct. 1307 (1996); McKen-

non v. Nashville Banner Publishing Co., 513 U.S. 352 (1995);

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); and

Hazen Paper Co. v. Biggins, 508 U.S. 948 (1993).

NELA members represent thousands of individuals in this

country who are victims of unlawful employment discrimina-

tion. Employment discrimination cases involving disparate

treatment are notoriously difficult to prove. First, under the

various statutes that prohibit such discrimination, our clients

must prove by a preponderance of the evidence that the deci-

sionmaker’s motivation was unlawful. Unfortunately, few de-

fendants confess to having an illegal motive, and NELA

members face substantial hurdles in meeting their burden of

proof. Second, additional barriers to proving our clients’ cases

have recently been adopted by lower courts, ranging from the

3

“same actor” and “stray remark” defenses to the misapplica-

tion of agency principles.

. The decision of the court of appeals in the present case

raises yet another barrier to individuals who seek to be free

from discriminatory conduct and sexual abuse in the work-

place. By predicating an employer's liability upon the gender

of the perpetrator, a factor over which the victim has abso-

lutely no control, the court of appeals would deny any remedy

to the victims of such abuse. Adoption Bod such a + pam

arbi test also would open the to significant un-

revtha yen Achmad such as the dismissal of a disability

discrimination case if the decisionmaker had a disability.

Congress intended no such preclusion of any remedy based

merely upon the class membership of the decisionmaker or

perpetrator. Rather, it directed courts to look at the status of

the victim.

Title VII was intended to strike at the entire spectrum of

discrimination in the workplace, regardless of whether the

alleged lawbreaker is of the same gender, same race, or same

religion as the victim of the discrimination. To protect the in-

terests of its members’ clients, therefore, the interest of NELA

in this case is that of ensuring that Title VII's goal of eradi-

cating employment discrimination is fully realized.

NELA submits this brief because of the importance of the

issues at bar to furthering its goals. The position that NELA

takes in this brief has not been approved or financed by peti-

tioner or his counsel. The written consents of all parties have

been or are being filed with the Clerk of this Court.

STATEMENT OF CASE

Joseph Oncale worked for respondent, Sundowner Offshore

Services, Inc., for approximately four months in 1991. He

filed suit under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2(a)(1), alleging that he had been sexually

harassed by respondents John Lyons (his supervisor) and

Danny Pippen and Brandon Johnson (two coworkers). The

district court granted summary judgment to respondents on

4

March 24, 1995, on the ground that, as a matter of law, sexual

harassment by persons of the same gender did not violate Ti-

tle VII. The United States Court of Appeals for the Fifth Cir-

cuit affirmed the decision on May 20, 1996.

INTRODUCTION

In employment discrimination cases, the motivation of the

decisionmaker or actor is a classic fact issue. Its importance is

derived from the “because of” language of Title VII. Since the

“because of” language appears in the statute, it is intrinsic to

all Title VII disparate treatment cases, including sexual har-

assment cases.

Yet sexual harassment is qualitatively different from most

other kinds of employment discrimination, and the template

of McDonnell Douglas v. Green, 411 U.S. 792 (1973), does

not fit. Most employment discrimination cases involve nega-

tive employment decisions motivated by hostility to a class of

which plaintiff is a member. Sexual harassment may spring

from feelings of anger and hostility to men or to women, or it

may arise instead from sexual attraction. The similarity lies in

the harm suffered by the victim.

“Sexual harassment” covers a wide range of actions, in-

cluding but not limited to these:

- harassment of a victim because the perpetrator

dislikes persons of that gender or does not want

persons of that gender in a given job (see, e.g.,

Intlekofer v. Turnage, 973 F.2d 773 (8th Cir.

1992); Hall v. Gus Constr. Co., 842 F.2d 1010

(8th Cir. 1988));

- unwelcome attentions, “romancing,” or stalking

because the perpetrator is sexually attracted to the

victim (see, e.g., Meritor Sav. Bank vy. Vinson,

477 U.S. 57 (1986));

- abuse of power by forcing clearly offensive,

sexually oriented words or actions on an unwill-

ing but vulnerable victim (see, e.g., Harris v.

Forklift Sys., Inc., 510 U.S. 17 (1993), Steiner v.

Showboat Operating Co., 25 F.3d 1459 (9th Cir.

1994); Jenson v. Eveleth Taconite Co., 139

F.R.D. 657 (D. Minn. 1991));

- harassment by sexually oriented means of an in-

dividual whom the perpetrator dislikes for non-

gender-related reasons (see, e.g., Doe v. City of

Belleville, 1997 WL 400219 (7th Cir. 1997)).

Courts on both the trial and the appellate levels are in disar-

ray about which, if any, of these scenarios vic'ates Title VII

when both perpetrator and victim are of the same gender.

As a result of the courts of appeals’ d’:ficulty in determin-

ing whether to look beyond the plain language of Title VII,

the law differs dramatically from circuit to circuit. Accord-

ingly, the fundamental right of an individual to be free from

workplace harassment “because of such individual's sex” de-

pends in some jurisdictions upon the sex of the harasser, in

other jurisdictions upon the sexual orientation of the harasser,

The court-created defenses (a) that “‘because of sex’ re-

quires the harasser to be sexually attracted to the victim”

(Fourth Circuit) and that (b) “anything men do to other men,

or women do to other women, cannot possibly be ‘because of

Se EE

divide courts, create j ve

basic statutory rights. These defenses also distort the other-

wise well-defined summary judgment standard, since the

“because of” language of Title VII is quintessential ly a fact

issue unless a plaintiff has no evidence to support his claim or

it is barred as a matter of law.

Like the statute, this Court has consistently used gender-

victim. Moreover, in non-harassment Title VII cases, this

Court has encountered no difficulty with the concept that a

person’s discrimination against another person of the same

sex may violate Title VII. See Johnson v. Transp. Agency, 480

U.S. 616 (1987) (male plaintiff brought Title VII sex dis-

crimination action based on allegedly discriminatory decision

in favor of a woman, made by another man); see also Wilson

v. Bailey, 934 F.2d 301 (11th Cir. 1991) (sex discrimination

claim brought by male plaintiff; no significance ascribed to

fact that decisionmaker was also male); McQuillen v. Wiscon-

sin Educ. Ass'n Council, 830 F.2d 659 (7th Cir. 1987), cert.

denied, 485 U.S. 914 (1988) (same).

The amicus respectfully submits that the anomaly created

by the circuit court’s reading of Title VII cannot be permitted

to continue. The decision below should be reversed.

ARGUMENT

The court of appeals in this case held that, regardless of any

other facts, Title VII as a matter of law does not encompass

any instance of same-sex sexual harassment. It allowed no

exceptions, regardless of the egregiousness of the behavior or

even a confession by the perpetrator. This decision errone-

ously deprives a large group of people (indeed, potentially

everyone) of the right to be free from sexual harassment in the

workplace, based upon a factor over which they have no con-

trol: the gender of their harassers. No victim of discrimination

-- whether it be based upon religion, race, or sex -- chooses

the oppressor. Indeed, no victim of discrimination would vol-

untarily assume that role at all. Nonetheless, the court of ap-

peals would deny these unwilling victims their statutory rights

merely because, in addition to being selected for victimiza-

tion, they were selected by the wrong harassers.

I. WHETHER JOSEPH ONCALE WAS HARASSED

BECAUSE OF HIS SEX IS PROPERLY A

QUES rlON FOR A FACTFINDER, AND

SUMMARY JUDGMENT WAS INAPPROPRIATE.

A. The Standard.

The Fifth Circuit Court of Appeals erred in granting sum-

mary judgment in the face of a genuine issue of material fact:

whether Joseph Oncale’s harassers were motivated by his

sex or gender, as opposed to a gender-neutral (even though

7

offensive) reason. This question, which should properly have

been submitted to a factfinder for resolution, instead was de-

cided by the district judge on a motion for summary judg-

ment.

Properly used, a motion for summary judgment legiti-

mately tests a party’s ability to put forth sufficient evidence at

trial. Improperly used, it allows courts to truncate the proof

process in the presence of disputed material facts. Here, the

court below decided, in effect, that whether the harassers

from juries. Wabun-Inini v. Sessions, 900 F.2d 1234, 1238

(8th Cir. 1990); see Matsushita Elec. Indus. Corp. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); United States v. Die-

bold, Inc., 369 U.S. 654, 655 (1962). The standard for sum-

mary judgment is well established in this Court. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita, supra;

tum of proof required to preclude summary judgment is only

“enough evidence so that a reasonable jury could return a ver-

dict” for the nonmoving party; it need not rise to actual proof

of the case. Jd. at 248.

These standards have been jettisoned altogether in deci-

sions of the Fifth Circuit Court of Appeals, including the case

at bar, concerning same-gender sexual harassment. Instead of

question. We respectfully submit that this is error

B. Material Factual Issues in Sexual Harassment Cases.

The elements of a hostile environment sexual harassment

case have been described by this Court in Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1986), and Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993). In brief, a plaintiff who

alleges hostile environment sexual harassment can prevail

by offering proof of unwelcome sexual conduct or

“discriminatory intimidation, ridicule, and insult” that is so

severe or pervasive that it alters the victim’s conditions of

employment by creating an abusive or hostile

Harris, 510 U.S. at 21, quoting Meritor, 477 U.S. at 65, 67.

Indeed, both Meritor and Harris make only passing mention

of the question whether harassment of an explicitly sexual

nature could be anything but “because of [the victim’s] sex.”

In practice, whether sexually oriented words or conduct

must also be shown independently to have been motivated by

the plaintiff's sex is seldom an issue when harasser and victim

are of different genders.' Most courts recognize the inference,

Or presumption, as being obvious. See, e.g., Horn v. Duke

Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599,

604 (7th Cir. 1985). Courts tend to focus insead on whether

the harassment occurred at all, whether it was uninvited,

whether it was sufficiently severe or pervasive to change the

plaintiff's terms or conditions of employment, whether it was

employer had either actual or constructive notice. They gener-

ally assume that, when a man sexually harasses a woman in

the workplace, he does so because of her sex. See, e.g.,

' A principal exception is, again, the Fifth Circuit. See, e.g., Nash v. Elec-

trospace Sys., Inc., 9 F.3d 401 (Sth Cir. 1993).

Nichols v. Frank, 42 F.3d 503, 411 (9th Cir. 1994); Horn, su-

pra, 755 F.2d at 604.

As the Seventh Circuit Court of Appeals recently noted,

however, “courts by and large have been unwilling to make

the same assumption when a man harasses another man in the

workplace, however rife the harassrsent may be with sexual

innuendo, sexual contact, and other conduct of an explicitly

sexual nature.” Doe v. City of Belleville, 1997 WL 400219, at

9 (7th Cir. 1997), citing McWilliams v. Fairfax County Bd. of

, 72 F.3d 1191 (4th Cir.), cert. denied, 117 S. Ct.

72 (1996), and Hopkins v. Baltimore Gas & Elec. Co., 77

F.3d 745 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996). We

respectfully submit that there is no reason to distinguish

among cases of sexual harassment based upon either the gen-

der or the sexual orientation of the alleged perpetrator.

C. The Allegations State Every Element of a Viabie

Title VII Claim.

The factual allegations in the case now before the Court

support every element of a classic hostile environment sexual

harassment claim -- and support it abundantly. The court of

appeals did not grant summary judgment based upon any fail-

ure of proof.

Joseph Oncale alleged, and on a motion for summary

judgment his allegations must be taken as true, that (a) the

conduct of which he complained occurred, (b) it was unwel-

come, (c) he conveyed to the harassers that their actions were

offensive to him, (d) the actions were severe and pervasive

enough to alter his terms and conditions of employment, (e)

Sundowner was apprised of the conduct and its unwelcome

nature, (f) Sundowner failed to take prompt, effective reme-

dial action, and (g) he was injured thereby.

Each of these elements is both highly material and highly

factual. Accordingly, if any one or more was disputed, sum-

mary judgment should not have been granted. See Meritor,

477 US. at 68. It is not an element of a plaintiff's Title VII

claim, however, that the gender of the harasser(s) must be

different from the plaintiff's own. In fact, in cases when the

harasser and victim are of different genders, most courts have

not considered the sex of the harasser worth mentioning, even

in passing, when they set forth the elements of the cause of

action.

Il. THE DECISION BELOW ERRONEOUSLY

CARVED OUT AN EXCEPTION TO TITLE VII

AND FAILED TO ACKNOWLEDGE WELL-

ESTABLISHED PRINCIPLES OF LAW.

The Fifth Circuit Court of Appeals held that, as a matter of

law, a man has no remedy under Title VII for sexual harass-

ment by another man. This holding direct conflicts with two

— related principles developed over the years in this

ourt.

First, this Court recognizes that members of an advantaged

group have the same legal rights under Title VII as do those in

disadvantaged groups. Thus, men can be victims of sex dis-

crimination, caucasians can be victims of race discrimination,

and Christians can suffer religious discrimination.

Second, as this Court also recognizes, there is no uniform-

ity of thought among people of any given group concerning

the presumed characteristics of others in that class. Accord-

ingly, a man who is discriminated against by another man be-

cause of his sex has the same legal rights under Title VII that

he would have had had the decisionmaker been a woman.

Since sexual harassment is merely a subset of sex discrimina-

tion, it follows a priori that a man who is sexually harassed

can assert his legal rights under Title VII, regardless of

whether the perpetrator is also a man.

? But see Nash v. Electrospace Sys., Inc., supra note |.

il

A. Individuals in Majority Groups Can Be Victimized

by Discrimination.

As this Court has stated, males as well as females are pro-

tected by Title VII against discrimination because of sex.

Newport News Shipbuilding & Dry Dock v. EEOC, 462 U.S.

669, 682 (1983). Ar employer’s practice, therefore, of pro-

viding less health insurance coverage to the spouses of male

employees than it provides to the spouses of female employ-

ees

[does] not pass the simple test of Title VII discrimi-

nation that we enunciated in Los Angeles Dep't of

Water & Power v. Manhart, 435 U.S. 702, 711

(1978), for it would treat a male employee with de-

“in a manner which but for that person’s

sex would be different.”

462 U.S. at 683. The gender of the decisionmaker was not

considered relevant. See also Johnson v. Transp. Agency, 480

U.S. 616 (1987).”

Similarly, based upon the language of Title VII that pro-

hibits discrimination against “any individual” because of that

individual’s race, this Court has held that caucasians, like Af-

rican-Americans, have a right pursuant to Title VII to be free

from racial discrimination. Citing legislative history, this

Court noted in McDonald v. Santa Fe Trail Transp. Co., 427

U.S. 273, 279 (1976), that “[Title VII's] terms are not limited

to discrimination against members of any particular race.” See

also Notari v. Denver Water Dep't, 971 F.2d 585, 588 (10th

Cir. 1992) (“Title VII's protection is not limited to those indi-

viduals who are members of historically or socially disfavored

groups”); Wilson v. Bailey, 934 F.2d 301, 304 (llth Cir.

> Cf Orr v. Orr, 440 U.S. 268 (1979) (state law that imposed alimony

ion on husbands but not on wives violated equal ; ,rotection clause

of fourteenth amendment); Craig v. Boren, 429 U.S. 190 (1976) (law pro-

hibiting sale of 3.2% beer to males under the age of 21 but to females un-

der the age of 18 violated equal protection clause).

12

1991) (in “reverse discrimination” case, white male plaintiff

must prove that job he sought was filled by “minority group

member or woman”); Livingston v. Roadway Express Inc.,

802 F.2d 1250, 1252 (10th Cir. 1986) (“Title VII, of course,

prohibits discrimination against groups that historically have

not been socially disfavored”); Murray v. Thistledown Racing

Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985) (“Title VII, of

course, prohibits racial discrimination against all groups”);

Lanphear v. Prokop, 703 F.2d 1311, 1314-15 (D.C. Cir.

1983) (“Title VII prohibits discrimination against white males

upon the same standards that it prohibits discrimination

against members of a racial minority”).

This principle shows the fallacy in Goluszek v. H.P. Smith,

697 F. Supp. 1452, 1456 (N.D. Ill. 1988), which the Fifth Cir-

cuit Court of Appeals followed in Garcia v. Elf Atochem

North America, 28 F.3d 446, 451-52 (Sth Cir. 1994). Not only

did Congress not restrict the protection of Title VII to persons

at a classwide disadvantage in their workplaces, but Title VII

has universally been interpreted in accordance with its plain

language to protect all persons from discrimination based

upon the characteristics set forth in that statute. See McDon-

ald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976).

B. Members of One Group Can Discriminate Against

Others in the Same Group.

1. The court failed to recognize “the many facets of

human motivation.”

The court of appeals’ rejection of same-sex sexual harass-

ment as a cause of action assumes that, as a matter of law, a

member of one group cannot discriminate “because of sex”

against another person in the same group. This assumption

ignores the individuality of human beings and the vast num-

ber of different experiences that form people’s beliefs and

perspectives. Similarly faulty reasoning was rejected by this

Court twenty years ago in a case arising from racial discrimi-

nation in the selection of grand juries. As noted in Castaneda

v. Partida, 430 U.S. 482 (1977):

13

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 dis-

criminate against other members of the group.

430 U.S. at 499.

Even the Fifth Circuit Court of Appeals has recognized the

fallacy of an argument that members of one race cannot pos-

sibly discriminate against members of the same race. In Hill v.

Mississippi State Employment Serv., 918 F.2d 1233 (Sth Cir.

1990), cert. denied, 502 U.S. 864 (1991), that court noted:

[W]e cannot permit future Title VII analysis to be

tainted by the district court’s casual acceptance of

the following fallacy: both black and white [ } clerks

serviced [plaintiff]; therefore, she was not the vic-

tim of discrimination, (that is, “Blacks never dis-

criminate against other blacks.”) To the argument’s

self-evident overbreadth, we add that the Supreme

Court has rejected it.

918 F.2d at 1240-41 (citing Castaneda). See also Johnson v.

Transp. Agency, supra (male employee was discriminated

against because of his sex when female was promoted, even

though male made decision); Wilson v. Bailey, supra, 934

F.2d at 304 (white males protected by Title VII from dis-

crimination in favor of minority group members or females)

(dictum); Jordan v. Wilson, 649 F. Supp. 1038, 1059 n.15

(M.D. Ala. 1996) (“This court would have to be truly naive to

assume that women cannot sexually discriminate against

women and that many women do not harbor stereotypical,

limited views of themselves”); Veatch v. Northwestern Mem'l

Hosp., 730 F. Supp. 809, 817 (N.D. Ill. 1990) (fact that

* Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579 (1978) (“A ra-

cially balanced work force cannot immunize an employer from liability

for specific acts of discrimination”), Cygnar v. City of Chicago, 865 F.2d

827 (7th Cir. 1989) (replacement of minority employee by individual of

same race does not preclude finding of discriminatory intent).

14

woman fired another woman or black fired another black does

not prove that decision was free of racial and gender stereo-

typing that federal law attempts to remove from employers’

decisionmaking).

2. An affirmance could have unintended

consequences.

Affirmance of the circuit court’s blanket rejection of same-

sex sexual harassment could also lead to many unintended

(and serious) consequences. If a person with Acquired Im-

mune Deficiency Syndrome had been fired by a decision-

maker who is blind, would not the employer, citing the

Court’s affirmance in this case, argue that the fired employee

has no remedy under the Americans with Disabilities Act be-

cause the decisionmaker, like the fired employee, has a dis-

ability?’ And if a 60-year-old chief executive officer adopts

the belief that the company needs a younger workforce and

terminates many subordinates in their 50s and 60s, would

those employees automatically lose their rights under the Age

Discrimination in Employment Act merely because the deci-

sionmaker was also a member of the protected age group?

While logic and the plain language of those statutes would

militate against such defenses, the arguments could clearly be

made, and their adoption would cause serious and unintended

harm to other victims of discrimination.

Ill. THE FEARED “HORSEPLAY” EFFECT.

Perhaps one of the most troubling contentions raised in

support of reading Title VII to exclude same-sex sexual har-

assment is that mere mistreatment of employees or

“horseplay” might find cognizance in a federal court. That

* Cf O'Connor v. Consol. Coin Caterers Corp., 116 S. Ct. 1307 (1996)

(replacement of terminated over-40 plaintiff by another person in pro-

tected class does not preclude prima facie case under Age Discrimination

in Employment Act); DeLesstine v. Fort Wayne State Hosp., 682 F.2d 130

(7th Cir.), cert. denied, 459 U.S. 1017 (1982) (rejecting argument that

prima facie case was destroyed by replacement of black male by female,

member of another protected class).

15

hollow argument need not trouble this Court. Both litigants

and courts are accustomed to sifting through facts and enter-

taining only viable cases under Title VII. This Court should

not fall victim to the implicit contention that neither lawyers

nor courts can be trusted to recognize a colorable Title VII

claim.

Underlying the argument that male-on-male or fe-

male-on-female abuse and hostility can never be illegal is an

implied assumption that workplace harassment among per-

sons of the same gender is inherently different from other

types of abuse because “boys will be boys.” See McWilliams

v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.),

cert. denied, 117 S. Ct. 72 (1996). But the fact that sexual

harassment may be accompanied by personal enmity or hooli-

ganism does not detract from its character as sexual harass-

ment. See Quick v. Donaldson Co., 90 F.3d 1373 (8th Cir.

1996); Burns v. McGregor Elec. Indus., 989 F.2d 959, 964-65

(8th Cir. 1993) (Burns IJ). “So long as the environment would

reasonably be perceived, and is perceived, as hostile or abu-

sive,” Title VII is violated, and personal enmity or hooligan-

ism are not excuses for conduct that otherwise violates Title

VII. Harris, 510 U.S. at 22.

The ultimate question in al) harassment cases is whether the

actions were sufficiently “severe or pervasive to alter the con-

ditions of the victim’s employment and create an abusive

working environment.” Harris, 510 U.S. at 21 (quoting

Meritor, 477 U.S. at 67). Not every offensive action will rise

-- or sink -- to this level. In some cases, the offensive work-

related nature of the actions will be clear; in others, it will be

less clear, and in some, the acts either will not be sufficiently

severe or pervasive or will not alter the victim’s working con-

ditions.

Each of these situations will require the parties and the

courts to review the facts to see whether the protections of

Title VII are truly involved. Such a review must focus upon

the background and purposes of Title VII, i.e., to prevent dis-

crimination from infecting a person’s work environment. The

16

defining assessment must be based upon whether there is suf-

ficient evidence of the elements of a Title VII harassment case

to permit a jury to find that discrimination based on sex cre-

ated a work environment that a reasonable person would find

abusive or hostile, and that the victim specifically perceived it

to be so. Harris, 510 U.S. at 21-22.

Title VII also requires a court to examine whether the al-

leged harassment adversely affected the victim’s terms, con-

ditions, or privileges of employment -- not whether it had

purely personal or social consequences. 42 U.S.C.

§ 2000e-2(a)(1); Alvey v. Rayovac Corp., 922 F. Supp. 1315,

1330 (W.D. Wis. 1996). This focus upon the work environ-

ment creates a second check upon a cavalier application of

Title VII to all boorish behavior, wherever it occurs. Title VII

is implicated only when a person’s working environment is

adversely affected by alleged discriminatory acts.

It is clear that sexual harassment cases are fact-bound.

Whether harassment is sufficiently severe or pervasive to cre-

ate liability under Title VII involves analysis of a variety of

factors and consideration of all the circumstances, an effort

that clearly calls for factfinding. Harris, 510 U.S. at 23; Burns

v. McGregor Elec. Indus., 955 F.2d 559, 564 (8th Cir. 1992)

(Burns I); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th

Cir. 1988). Sexual harassment can occur in many different

forms, and there should be no excuse for unrestrained abuse

of an employee because of his or her gender. Burns I/, 989

F.2d at 965. An employee has a right to work in an environ-

ment free of sexually oriented discrimination and intimida-

tion, ridicule and insult. Meritor, 477 U.S. at 65.

Whether the challenged conduct may be prohibited dis-

crimination or de minimis “horseplay” is in the first instance

the district court’s concern when considering a motion for

summary judgment. In order for it to be the former, the plain-

tiff must show facts that can establish an objectively as well

as subjectively abusive or hostile work environment. See, e.g.,

Callanan v. Runyon, 75 F.3d 1293 (8th Cir. 1996); DeAngelis

v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (Sth

17

Cir.), cert. denied, 116 S. Ct. 473 (1995). The task that faces a

court when an employer alleges that the harassment was not

sufficiently severe or pervasive to support a Title VII claim

er explained by the Seventh Circuit Court of Ap-

[Title Vil) is not designed to purge the workplace of

vulgarity. Drawing the line is not always easy. On

one side lie sexual assaults; other physical contact,

whether amorous or hostile, for which there is no

consent express or implied; uninvited sexual solici-

tations; intimidating words or acts; obscene lan-

guage or gestures; pornographic pictures. On the

other side lies the occasional vulgar banter, tinged

with sexual innuendo, of coarse or boorish workers.

Baskerville v. Culligan Int'l. Co., 50 F.3d 428, 430 (7th Cir.

1995) (citations omitted).

If facts are shown sufficient to support an inference that the

conduct was severe or pervasive enough to violate Title VII,

the next question for the jury’s consideration is whether the

abuse and hostility occurred for an illegal sex-based reason

and not for some offensive but legal reason. The jury’s func-

eS Seer Sete toe Cantar wep “Rasmune of” the

vi S$ SEX.

IV. PROVING MOTIVATION IN SAME-SEX

SEXUAL HARASSMENT CASES.

A. Sexual Attraction.

Proof of same-sex sexual harassment can be made in any of

three ways. The most obvious way to prove that harassment

occurred “because of sex” is to show that the harasser acted

out of sexual attraction to the plaintiff (i.e., by proving the

harasser’s homosexuality or bisexuality). See Fredette v. BVP

Management Assocs., 112 F.3d 1503, 1507 (11th Cir. 1997)

(“We readily understand a homosexual male’s advances to-

wards another male to occur “because of sex’; we understand

this both out of common experience and in recognition of the

parallels between this situation and the paradigm case of

18

harassment involving a heterosexual male and a female vic-

tim”); Yeary v. Goodwill Indus., 107 F.3d 443, 447-48 (6th

Cir. 1997) (“[T]his case is about as traditional as they come,

albeit with a twist. It is about an employee making sexual

propositions to and physically assaulting a coworker ,

it appears, he finds that coworker sexually attractive”);

Wrightson v. Pizza Hut, 99 F.3d 138 (4th Cir. 1996) (“[A]

claim under Title VII for same-sex ‘hostile work environ-

ment’ harassment may lie where the perpetrator of the sexual

harassment is homosexual”). As the Fourth Circuit Court of

Appeals remarked in Hopkins v. Baltimore Gas & Elec. Co.,

77 F.3d 745, 752 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996),

courts will operate from a presumption that people are hetero-

sexual, and (under the “attraction” form of proof) this pre-

sumption must be overcome by the plaintiff's evidence to the

contrary before he or she may proceed with a same-gender

harassment case.

One obvious problem with this method of proof is that the

requisite evidence may not be easy to obtain. It could, for ex-

ample, necessitate mental examinations of the alleged perpe-

trator under Fed. R. Civ. P. 35 to discover any latent

homosexual or bisexual tendencies.

This method of proof also incorrectly presumes that sexual

attraction, rather than an abuse of power, is always what mo-

tivates a sexual harasser. Yet proof of sexual attraction has

been specifically rejected as a requirement when a female is

sexually harassed by a presumably heterosexual male supervi-

sor. See, e.g., McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.

Cir. 1985).

B. Disparate Treatment.

A second way to prove liability under Title VII for same-

sex harassment is to prove that the perpetrator harassed only

employees of his or her own gender. This method of proof

was used in Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th

Cir. 1996). The Quick court observed that, should the evi-

dence show incidents of the challenged conduct by the male

perpetrators against only male and not female employees, a

Requiring proof of such animus also would ignore the

many decisions holding that an individual victim of discrimi-

nation need not prove that the decisionmaker was hostile to

the entire class of which the plaintiff is a member. Title VII

protects individual people and does not require proof of group

animus. Connecticut v. Teal, 457 U.S. 440, 458 (1982).

C. The Sexual Nature of the Harassment.

The third way to prove that same-sex sexual harassment

occurs “because of” the victim’s sex is to show that the con-

duct itself was sexual in nature. Regardless of whether the

individual perpetrator regards himself or herself as homosex-

ual or is shown to be latently so, acts involving sexuality are

sexual per se. This was specifically addressed in City of

Belleville, supra, in which the court noted:

Frankly, we find it hard to think of a situation

in which someone intentionally grabs another's

* The nonconsensual sexual acts alleged in this case could, for example,

result from a psychological disorder known as sexual sadism, in which an

individual is sexually aroused by the suffering of a victim (whether con-

senting or nonconsenting), such suffering sometimes brought about by

restraining, beating, or raping the victim. DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS FOURTH ED. (“DSM-IV”) at 530 (1994

American Psychiatric Association).

Id., 1997 WL 400219 at 14. Cf Andrews v. City of Philadel-

phia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (“[T]he intent to

discriminate on the basis of sex in cases involving sexual

propositions, innuendo, pornographic materials, or sexual de-

rogatory language is implicit, and thus should be recognized

as a matter of course”); Nichols v. Frank, 42 F.3d 503, 511

(9th Cir. 1994) (“Sexual harassment is ordinarily based on

sex. What else could it be based on?” [emphasis in original]).

D. Application of These Principles to the Instant Case.

The record developed in this case indicates that the sexual

harassment perpetrated upon Joseph Oncale might be proved

through any one of these three methods. Although he may not

have specifically alleged that the perpetrators (or any one of

them) were homosexual or bisexual, he certainly was threat-

ened with homosexual rape.

victim -- a eT dn Eee a ee guy

should have the opportunity to offer his proof and —

finder of fact decide the factual issues presented by his

21

Conclusion

The court of appeals, in interpreting Title VII to exclude all

same-sex harassment cases solely because of the gender of the

harassers, ignored not only the plain language of the statute

but the standard required for any grant of summary judgment.

oS a eee harassment of Joseph Oncale

in sexually oriented ways was not and could not have been

done “because of [his] sex” as a matter of law, the court pre-

cluded genuine factfinding on this crucial issue. The decision

Nemo car tyre

Dated: August 11, 1997

Respectfully submitted,

Of Counsel: MARGARET A. HARRIS*

ANNE GOLDEN Counsel of Record

1740 Broadway, 25th Floor 3223 Smith, Suite 308

New York, New York 10019 Houston, Texas 77006

(212) 489-8230 (713) 526-5677

VICTORIA L. HERRING

2600 Grand Avenue, #200

Des Moines, lowa 50312

(515) 280-9667

* Counsel of Record for National

eal , nay a