It may go down as the great “nerd protection” decision of 1998.
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That’s how history may remember the Supreme Court’s decision to expand sexual harassment protection to people of the same sex as their alleged harassers, even when the parties involved are not homosexual.
It was a major decision, one that cleared the air for a lot of legal experts but fogged it up for many of the rest of us. After all, many of us asked ourselves, if one heterosexual annoys another heterosexual of the same sex, it may be harassment, but is it sexual harassment?
For years lower courts have been saying no. They’ve been reluctant or flatly refused to hear claims of same-sex harassment unless the harasser was a homosexual.
Last week in a unanimous decision written by Justice Antonin Scalia, the high court ruled that neither gender nor sexual orientation mattered. Only the harasser’s conduct, not his or her desire, mattered. The critical issues, he wrote, were whether the person was singled out and discriminated against because of his or her sex and whether the behavior was “so objectively offensive” as to “create an environment that a reasonable person would find hostile or abusive.”
Ah, but what is “objective” and what is “reasonable?” One person’s “objective” is another person’s “bull feathers.” My reader mail illustrates to me on a regular basis that most people define objective and reasonable as “that which agrees with me.” Everything else, by their lights, is “emotional,” “irrational” and “typical of your usual nonsense.”
That was the way Joseph Oncale’s superiors at Sundowner Offshore Services greeted his complaints, he says, when he claimed that three fellow workers, including a supervisor, had sexually harassed and physically assaulted him on an oil rig off the Louisiana shore where he worked as a roustabout on an eight-man crew. Among the insults, two men grabbed him in a shower and one threatened him with rape.
Oncale complained to management, but nothing was done. At least one shrugged it off saying the two men had “picked (on) him all the time, too” and called him a name suggesting homosexuality.
Oncale quit and later filed suit claiming he was discriminated against in his employment because of his sex. At his deposition he said “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”
Oncale sued his employers and the three other workers, but the suit never made it to a jury. A judge ruled that he had no claim and a federal appeals court agreed. The high court’s decision grants Oncale the right to take his case to court after all.
Whether the men would have carried out that threat or even wanted to was beside the point, Scalia wrote. Actions, not intentions, are what count. “Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex,” he wrote.
That’s what I mean by nerd protection. Now a manly man has somewhere to go when other manly men give him a hard time for falling short of their standards of manliness.
From a distance, the Oncale case looks like a classic bully-versus-pipsqueak situation that got out of hand. Way out of hand. Oncale is a slightly built man with boyish features, despite his mustache. What began perhaps as harmless horseplay quickly grew into something sinister, persistent and so threatening, Oncale said, that he couldn’t work there anymore.
That’s when he decided to make a federal case out of it, and justifiably so. As Scalia wrote, flirting and innocuous horseplay are OK on the job. Sexual discrimination that threatens one’s ability to work is not.
It is OK for a pro football coach to smack a player on the buttocks as he heads on to the field, Scalia writes, “even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.”
“Common sense and an appropriate sensitivity to social context,” he wrote, “will enable courts . . . to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person . . . would find severely hostile or abusive.”
But, ah, there goes that word “reasonable” again. Unfortunately, one person’s “common sense” is another person’s nonsense. The elegant and unusual brevity of Scalia’s seven-page opinion leaves it to lower courts to thrash out the distinctions between “common sense” and nonsense.
In the meantime, I wonder how long will it be before we see a 98-pound weakling sue his school bully for giving him a “wedgie” in gym class.
The nerds have their revenge for now. But, when it comes to testing “common sense,” the bullies never quit.