Same-Sex Sexual Harassment Claims After Oncale: Defining the Boundaries of Actionable Conduct
70 Pages Posted: 28 Aug 2007
The United States Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., declared that claims of same-sex sexual harassment are cognizable under Title VII of the Civil Rights Act of 1964. This article, the first in the law reviews to respond to Oncale, synthesizes all of the extant case law and commentary and argues that the recognition of same-sex sexual harassment claims will have several desirable effects. First, same-sex sexual harassment cases will inspire support for an amendment to Title VII outlawing discrimination on the basis of sexual orientation, or, in the alternative, judicial recognition that discrimination on the basis of sexual orientation contravenes the sex stereotyping proscriptions of Title VII. Second, same-sex harassment litigation will expose the inconsistency in Title VII jurisprudence that arises from an over-reliance on presumptive heterosexuality in sexual harassment cases. The resulting refinement and clarification of the causation analysis in sexual harassment jurisprudence will promote consistency, judicial economy, and ultimately, a more reasoned and just application of Title VII.
Keywords: sex discrimination, employment discrimination, Title VII, same-sex sexual harassment
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