Supreme Court Unanimously Finds Same-Sex Harassment to Be Illegal
By Frank L. Kollman

While assuring football coaches that they can continue to pat players on the behind without being sued for sex harassment, the United States Supreme Court has squarely endorsed the concept that other swats on the butt "in the proper context" can be illegal under federal law. Rejecting a lower court decision that an employee cannot harass an employee of the same sex for liability purposes under the federal employment discrimination law, the Court has now opened the door to lawsuits by men against other men - or women against other women for that matter - for sexual harassment.

Just how the Court's opinion will affect work place relations between employees of the same sex remains to be seen. The Court tried to carve out an exception for "simple teasing or roughhousing among members of the same sex," but left it to the "common sense" of courts and juries to determine whether a reasonable person would find certain types of teasing and roughhousing "severely hostile or abusive." So, trial courts and juries may be asked to decide whether locker room talk or towel snaps are sexual harassment.

In the one bright area of the Court's decision, Justice Scalia emphasized that an employee must still prove that the conduct "actually constituted discrimination based on sex." Justice Scalia goes on to suggest that if both sexes are exposed to the same conditions, there may not be sexual harassment. For example, the Court states that a sexual proposition by a male supervisor to a female employee raises an inference of discrimination; likewise, a sexual proposition by a gay supervisor raises a similar inference. The logical conclusion from this argument, it appears, is that a bisexual supervisor can defend against such charges by proving he propositions both men and women with equal zeal. Scalia does not state whether a pinch on the behind of a woman by a heterosexual supervisor can be defended by showing he has, in equal numbers, pinched male employees.

The lesson to be drawn from this ruling is less than clear. We recommend that if employees complain about harassment by employees of the same sex, an employer should take action in cases that appear to be more than simple teasing or roughhousing. Even better, employers should take action in all cases to put conduct that an employee reasonably alleges is hostile to an end. If there is any question in your mind whether the conduct could offend, stop it. That way, you may avoid liability for failing to take corrective action.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093   Phone: 410-727-4300
Fax: 410-727-4391   © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.^tm