Oncale v. Sundowner Offshore Services,
Inc.: 1998

Appellant: Joseph Oncale
Defendant: Sundowner Offshore Services, Inc.
Appellant's Claim: Sexual harassment
Chief Defense Lawyer: Harry M. Reasoner
Chief Lawyers for Appellant: Nicholas Canaday Ill, Edwin S. Kneedler, and U.S. Department of Justice (amicus curiae)
Justices: Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, David H. Souter, John Paul Stevens, and Clarence Thomas
Place: Washington, D.C.
Date of Decision: March 4, 1998
Decision: Reversal of the lower federal courts, holding that the Civil Rights Act of 1964 prohibited same-sex sexual harassment.

SIGNIFICANCE: The Oncale case applied the concept of sexual discrimination to include the idea of same-gender sexual harassment.

The Civil Rights Act of 1964 was designed mainly to prevent discrimination based on race. During congressional debate on the measure, a Southern representative, trying to prevent its passage, added a clause at the 11th hour to include a prohibition on discrimination "because of… sex." This representative was sure that sex-based discrimination would be too controversial for Congress to consider. However, to his disappointment, the law was enacted anyway.

In the 1960s women comprised only a small fraction of the workforce. However, they soon began to use the act to fight discrimination in the workplace including harassment from coworkers and supervisors, "quid pro quo" sexual discrimination, and demands for sex in exchange for promotion or job security. Eventually the courts also dealt with the issues involved with male workers being sexually harassed by female coworkers and supervisors. By the early 1990s, sexual harassment was beginning to take a different form.

In 1991, 21-year-old Joseph Oncale took a job as a deckhand on a Louisiana off-shore oil rig. No women worked on the rig and Oncale was part of an eight-man crew. Before long, he later claimed, some of the men began making sexual threats and crude sexual advances that stopped short of rape, but which Oncale found frightening and humiliating. After an alleged assault that took place in the shower, Oncale finally quit. He later said that he feared that if he did not leave his job "I would be forced to have sex… if I didn't get off the rig… I would be sexually violated."

If Oncale had been a woman—or if his alleged tormentors had been female—he would have had a strong case for harassment under the Civil Rights Act. But in 1995, the federal District Court for the Eastern District of Louisiana dismissed his case, finding that Congress had never intended the act to bar same-sex sexual discrimination. Oncale took his case before the U.S. Court of Appeals for the Fifth Circuit, which affirmed the district court, and then finally before the U.S. Supreme in 1997. Up to then, federal courts throughout the country had handled the issue of "male-on-male" sexual harassment in different ways, and the Supreme Court was now apparently ready to end the confusion.

Court Rules Same-Sex Harassment Illegal

Oncale's attorney, Nicholas Canaday III, faced some hard questioning from the justices. The problem, in their view, was that the harassers' gender might not matter, but that the victim had to show that he—or she—had received the offensive treatment because of his—or her—own sex. Only if the harassers would have treated a member of the opposite sex differently than they treated the victim would the harassment then be "because of… sex." But for an all-male oil rig crew—with no easy way of comparing Oncale's treatment to that of what a woman would have received—such a thing would be hard for him to prove.

Finally, however, in a unanimous opinion rendered on March 4, 1998, the Court sided with Oncale. Justice Antonin Scalia, one of the Court's most conservative members, approvingly quoted Justice Ruth Bader Ginsburg (herself a specialist in sex discrimination law: "The critical issue," he pointed out, "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." In other words, the sex of offender and victim did not matter, and Congress' lack of specificity in so mentioning also was not an issue, regardless of what it had intended. Indeed, in his judicial opinions, Scalia rarely relied on what Congress intended, focusing instead on what the law actually stated. This approach made him an excellent choice—given the odd history of the Civil Rights Act's passage—to write the opinion concluding that Oncale should have had the chance to prove that he had been sexually harassed.

The Oncale case revealed that sexual discrimination in American society was becoming far more multifaceted and complex than that of traditional male harassment of women. It also revealed that the courts were growing aware of this fact, adapting a nebulous statute to the needs of society in response.

—Buckner F. Melton, Jr.

Suggestions for Further Reading

Smallets, Sonya. "Oncale v. Sundowner Offshore Services: A Victory for Gay and Lesbian Rights?" Berkeley Women's Law Journal (1999): 136-148.

Ware, Dabney D. and Bradley R. Johnson. "Oncale v. Sundowner Offshore Services, Inc.: Perverted Behavior Leads to a Perverse Ruling." Florida Law Review, (July 1999): 489-509.