Is Same Sex Sexual Harassment Illegal?

Same sex sexual harassment is prohibited by the federal Title VII law prohibiting discrimination based on sex.  The U.S. Supreme Court in  Oncale v. Sundowner Offshore Services, Inc. ruled that same sex harassment is actionable.   The court stated that “Title VII’s prohibition of discrimination because of sex protects men as well as women.”  The difficulty with this statement is in the application to the facts of these cases.  The Supreme Court said that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which other members of the other sex are not exposed.  This standard requires an assessment of the objective severity of the harassment judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.  The Fifth Circuit court of appeals examined this issue, after  Oncale  in the LaDay v. Catalyst Technology case, as to the issue of proof constituting credible evidence that the harasser was a homosexual to show sex discrimination.  Although it is not absolutely necessary to show that the harasser is homosexual, it is the type of evidence that is likely to be especially credible proof that certain conduct is based on sex by a male on a male or a female on a female.  This is an area that needs further guidance from the courts, especially as to the exact meaning of the term “based on sex”.  Another difficult area is whether the term “based on sex” as related to sexual harassment includes cases based on “sexual orientation”.  Some courts have ruled that harassment toward a person based on their homosexuality alone is not based on their sex, but on their sexual orientation, and therefore not actionable.