Same-Sex Harassment, Textualism, Free Speech, and Oncale: Laying the Groundwork for a Coherent and Constitutional Theory of Sexual Harassment Liability
George Mason Law Review, Vol. 7, pp. 1-43, 1998
43 Pages Posted: 14 Jul 2009
Date Written: 1998
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 imposes liability on employers who engage in sex discrimination that adversely affects an employee's terms or conditions of employment. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court unanimously held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court's opinion in Oncale may not end all facets of the current debate regarding same- sex harassment. For example, it may leave room for argument that liability for sex discrimination is based on the sexual content of harassment. When carefully analyzed with other Supreme Court precedent, however, Oncale points to a simple, coherent theory of sexual harassment that rests on proving that the harasser targeted the victim for harassment on the basis of the victim's status as male or female.
Such a theory has several virtues. It is relatively easy to apply, and it applies broadly to discriminatory harassment in a wide variety of contexts. Perhaps most significantly, it lays the groundwork for a future decision in which the Supreme Court squarely addresses First Amendment limitations on Title VII's imposition of harassment liability when an employer or its agent maintains a discriminatory work environment through abusive speech. By strengthening the evidence that the Supreme Court will embrace a content-neutral theory of liability, Oncale enhances the likelihood that objections to Title VII based on First Amendment values will be minimized. This article discusses Oncale and its implications for First Amendment challenges to Title VII liability for verbal harassment.
Keywords: sexual harassment, civil rights, First Amendment
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