INTRODUCTION

In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court decided that same-sex sexual harassment was actionable as a violation of Title VII of the Civil Rights Act of 1964. Under Title VII, an employer cannot take an adverse employment action “because of sex.” In Oncale, the harassment included physical assaults of a sexual nature, including threatened rape. Importantly, the text of Title VII does not include “sexual orientation” or “gender identity” in its list of protected classes that includes race, color, religion, and national origin, in addition to sex.

As important as the Oncale ruling is for plaintiffs subjected to same-sex sexual harassment, it is also problematic. For instance, the U.S. Supreme Court did not include discrimination based on sexual orientation and gender identity as discrimination because of sex. In addition, many courts have interpreted the Court's opinion to limit the theories by which a plaintiff could prove same-sex discrimination to those specifically enumerated by the Court, thereby precluding other theories, such as gender role policing. The feminist judgment, by Professor Ann McGinley writing as Justice McGinley, seeks to correct these and other limitations of the original opinion.

THE U.S. SUPREME COURT DECISION

The facts of Oncale are set out in detail in the feminist judgment and need not be reiterated here. Writing for the U.S. Supreme Court, Justice Scalia provided in the original opinion only limited facts, citing the need for “brevity and dignity.” The facts of the majority thus state little more than that during his employment at Sundowner Offshore Inc., Oncale was forcibly subjected to “sex-related, humiliating actions” by male supervisors and coworkers.

On the legal issue, the Court began by holding that “nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant … are of the same sex.” The Court enumerated three ways that a plaintiff could prove that same-sex harassment was because of sex and in violation of Title VII. First, the plaintiff could raise the inference of sex discrimination if the harasser was homosexual, making the harassment motivated by desire.