15 Years Later: Harassment Laws Still Broken

March 8, 1998 the Washington Post published an Op-Ed in response to a Supreme Court decision, Oncale v. Sundowner. Sadly, the essence of this Op-Ed still resonates today: “Predicating harassment suits on discrimination is also something of a mismatch; what bothers people about abusive workplace conduct, after all, is not the fact that it may be discriminatory but that it is abusive in the first place… Congress should decouple harassment from discrimination. Our anti-discrimination laws were not passed to deal with harassment, and if such suits are to go forward in federal courts, it would be far better if they proceeded under laws that outlined clearly what is and is not actionable conduct. These laws would have to be written carefully so as not to create a code of conduct that makes a crime of ordinary, human quarrels and managerial overreaching. At the same time, if a work environment is sufficiently abusive, it should not save an employer from liability that the abuse is dispensed without regard to race, sex or national origin. By keeping quiet all these years, Congress has essentially ceded the promulgation of harassment law to the Supreme Court. As long as harassment and discrimination remain tied, our legal system will invite frivolous actions even as it places hurdles in the path of plaintiffs like Mr. Oncale.”

A national Care2 petition with over 8,000 signatures — and that includes devastating personal stories that describe the trauma of working in a hostile work environment — calls on the Obama Administration to find a national solution.  Here’s the original 1998 Washington Post Op-Ed in full:

JUSTICE ANTONIN Scalia‘s decision Wednesday in the case of Oncale v. Sundowner Offshore Services Inc. gave the issue of same-sex sexual harassment the best answer our muddled sexual harassment law could have yielded. On behalf of a unanimous Supreme Court, Justice Scalia’s opinion reversed a lower court ruling which held that same-sex harassment can never form the basis of a federal sexual harassment suit. The court’s decision will allow Joseph Oncale’s same-sex harassment suit against his former employer to proceed in a lower court. But the decision may not enable Mr. Oncale ultimately to win his case even if he successfully proves his chilling allegations to be true. This unjust outcome is not Justice Scalia’s fault; it is, rather, a function of the larger inadequacies of our current law, and it highlights the need for Congress to clarify the rules.

Mr. Oncale claims that, while working on a Sundowner oil rig, he was repeatedly threatened with rape by his colleagues and once assaulted in the shower. He claims he complained to management, which allegedly did nothing to stop the abuse, and he eventually had to quit his job. It seems like an obvious case of sexual harassment.

The pitfall for Mr. Oncale, however, is that harassment itself is not actually prohibited by the language of any federal statute. The law was, rather, created by the Supreme Court, which has held that harassment can be a form of workplace sex discrimination. In some cases, this is a persuasive reading. A boss who demands sexual favors of his female — but not male — subordinates is discriminating against women. But the court’s holdings actually go beyond classic discrimination. A 1986 opinion by Chief Justice William Rehnquist held that harassment is discriminatory if it creates a hostile work environment — even if sex is not a condition of employment or promotions. This logic also makes a certain amount of sense; an atmosphere of pervasive groping of women, for example, is a workplace in which the terms of employment for women are materially different from those for men and is, thereby, discriminatory. But it is also a standard that lends itself to attenuation, and the court’s permissive rulings have allowed harassment suits — many alleging conduct far less offensive than Mr. Oncale’s suit — to proliferate in recent years. Predicating harassment suits on discrimination is also something of a mismatch; what bothers people about abusive workplace conduct, after all, is not the fact that it may be discriminatory but that it is abusive in the first place.

This is the problem for Mr. Oncale. Even after Justice Scalia’s decision, his allegations of abuse still don’t look much like discrimination, especially considering that he worked on an all-male rig. While the alleged abuse was definitely sexual in nature and clearly severe, it is not at all evident that Mr. Oncale was singled out because he was male. Yet if his story is true, Mr. Oncale ought to have a winning harassment case.

Congress should decouple harassment from discrimination. Our anti-discrimination laws were not passed to deal with harassment, and if such suits are to go forward in federal courts, it would be far better if they proceeded under laws that outlined clearly what is and is not actionable conduct. These laws would have to be written carefully so as not to create a code of conduct that makes a crime of ordinary, human quarrels and managerial overreaching. At the same time, if a work environment is sufficiently abusive, it should not save an employer from liability that the abuse is dispensed without regard to race, sex or national origin. By keeping quiet all these years, Congress has essentially ceded the promulgation of harassment law to the Supreme Court. As long as harassment and discrimination remain tied, our legal system will invite frivolous actions even as it places hurdles in the path of plaintiffs like Mr. Oncale.

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