Kelley testimony 2: Oncale Supreme Court decision on workplace sexual harassment does not protect LGBTs from discrimination

Pamela Kelley (right) talking with Jean Craciun during a break at the July 21 Anchorage Assembly meeting

As mentioned in my previous post about UAA Justice Center Professor Pamela Kelley’s July 21 testimony at the Anchorage Assembly, there was some confusion about a particular court decision mentioned by a previous speaker.  This led Pam to write an letter yesterday to Assembly Chair Debbie Ossiander and Assembly Member Jennifer Johnston to clear up the confusion.  Pam sent me a copy as well, and she granted me permission to post it here.

Prof. Kelley’s email

From: [Email address deleted for privacy] On Behalf Of Pamela R. Kelley
Sent: Wednesday, July 22, 2009 4:51 PM
To: Ossiander@gci.net; JJohnston@gci.net
Subject: Ocale case bearing on AO 2009-64

I’m the UAA prof who spoke about what the law currently provides at the 7/21 hearing.  I’ve attached a letter explaining the significance of the Oncale v. Sundowner Offshore Services, Inc. (1998) case that an ordinance opponent referenced.  I’ve also included a copy of the case from the Lawyer’s Edition reporter of Supreme Court cases because I find them easier to read than the Legal Information Institute version.

Best wishes as you evaluate this tough call.

Prof. Kelley’s attached letter

Pamela R. Kelley
[address deleted for privacy]

July 22, 2009

VIA Email
Debbie Ossiander
Ossiander@gci.net

Jennifer Johnston
JJohnston@gci.net

Re: AO 2009-64 et al.

Dear Assembly Members,

I want to take this opportunity to correct any confusion brought about as a result of my testimony at the July 21, 2009 public hearing on the anti-discrimination ordinance. My hearing isn’t as sharp as it once was, and so I commented about the McCollough case that I thought a previous member of the public referenced. At the break I learned he’d spoken of the Oncale case.

I correctly represented that the former was not governing law in our jurisdiction, being neither a 9th Circuit Court of Appeals decision nor one of the U.S. Supreme Court. But Oncale is most definitely law governing in Alaska. However, that does not alter the thrust of the testimony I provided to you last night. Even Oncale does not provide the spectrum of protection that the proposed ordinance or charter amendments would provide. The case is quite limited in its scope.

Three minutes is not sufficient time to define the case law in a nuanced area such as the law of employment discrimination or the broader law of equal protection. Here, however, is a very succinct explanation for why I hold firmly to my view that the protections promised through the proposed ordinance are not provided through the application of Oncale’s rule to our community.

First, Oncale recognizes that the law of employment discrimination based on sex (42 U.S.C. 2000e-2(a)(1)) applies to men just as it applies to women. Second, Oncale recognizes that the specie of employment discrimination referred to as “sexual harassment” is applicable to cases in which the alleged harasser and victim are of the same sex. The balance of the case speaks to presumptions and standards of proof – more of interest to a litigator than a legislator I suspect.

Oncale arises out of events that occurred on an offshore oil platform, where Mr. Oncale worked as a roustabout who alleged he was fondled and threatened with rape by other members of his eight-man work crew. Assuming arguendo the facts he alleged were true, Mr. Oncale was the victim of prohibited sex discrimination because he was a heterosexual male.

The case is not one that extends protection from discrimination to the classes of persons identified in the ordinance. Cases of statutory construction (as opposed to constitutional right) are strictly construed and narrowly drawn. The holding in Oncale does not expand the reach of the Civil Rights Act of 1964, as amended, to all gay, lesbian, bisexual and transgendered individuals as newly protected classes. Rather, it pronounces at most that homosexual persons are not free to discriminate against heterosexuals without risking liability under the Act.

Oncale is about “hostile work environment” sexual harassment. It is not about quid pro quo sexual harassment. It is limited to the workplace. It does not reach hiring, firing and promotion. It does not reach housing. It does not reach education. It does not reach commercial practices.

After reading Oncale last night, I spent most of the day reviewing the headnotes of the case law in the 9th Circuit to locate a case in which Oncale is cited by the court to form the basis for a more expansive holding than I have described here. I’ve read dozens of cases today. I have not found one that approaches the reach of the proposed ordinance. Instead, I continue to read cases in which Oncale is read as narrowly as I have described it. Courts are conservative institutions for the most part, in the sense that they follow precedent closely.

I urge you to consider the ordinance in light of what existing law actually is, and not how it has been represented to you out of context. If it passes, it will improve the lives of permanent members of our community whose children attend our schools and whose property taxes fund municipal services. I support the ordinance, I encourage you to do so too.

Respectfully,
Pamela R. Kelley

Oncale decision text & information

Click through for a copy in PDF format of the U.S. Supreme Court decision in this case.  The copy included here is as printed in the Lawyer’s Edition reporter, 140 L Ed 2d 201 (as provided by Prof. Kelley), which means that besides the decision itself, there’s also a case summary and headnotes.

• Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

Text of the case is also available through the Legal Information Institute at the Cornell University Law School.

Additional sources on the Oncale decision:

• “Oncale v. Sundowner Offshore Services.” Wikipedia article.
• Oncale v. Sundowner Offshore Services, Inc. , U.S. Supreme Court Case Summary & Oral Argument. The Oyez Project (website). Audio file and transcript of oral arguments made before the U.S. Supreme Court.
• “Oncale v. Sundowner: Same-sex Harassment, and Sexual Harassment of Men.” Sexual Harassment Support (website).

A note of irony

I can’t complete this post without noting the considerable irony in a case like Oncale being brought forth in support of arguments against an ordinance that would protect LGBT people from discrimination.  Here are a couple of relevant excerpts from the summary of the case at the Sexual Harassment Support website (emphases added):

In October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by his male coworkers in the presence of the rest of the crew. His coworkers, including supervisory personnel, grabbed him, held him, removed their penises from their trousers and threatened to have sex with him. He also alleged he was in a shower when these same men entered the shower, pinned him, and abused him using a bar of soap. (Note: all men involved, including Oncale, were heterosexual.)

All of them were heterosexual. Then why were they harassing him?  Most probably the harassers perceived Mr. Oncale as gay; and in fact, per the text of the Supreme Court decision (written by Justice Antonin Scalia), when Mr. Oncale went to the company safety compliance clerk for assistance in stopping the harassment, the clerk “called him a name suggesting homosexuality.”

The Supreme Court decision ultimately stipulated that “Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII” — regardless of the sexual orientations of the perpetrators or victims, or whether sexual desire or intentions were involved. Per the Sexual Harassment Support website,

This case also set the precedent that an harasser does not have to have sexual intentions towards a target for their behavior to be viewed as sexual harassment. For example, if a straight man is harassing another man, if the behaviors include unwanted sexual attention or actions, it can still constitute sexual harassment.

That’s of course exactly how it happened to Mr. Oncale: he was a straight man who was sexually harassed by other straight men. But male-on-male sexual harassment and worse is not uncommonly used by straight men as an intimidation tactic against homosexual men:

This case has been lauded by homosexual groups, who have pointed out that the precedent set provides protections for gays who are often the targets of sexual harassment because of their orientation. Indeed, it has been heralded as a landmark “gay rights” case, even though the people involved were all heterosexuals.

Indeed.  In Identity Reports, we documented two cases in which gay men were sexually assaulted by multiple assailants — in other words, gang-raped.  One of those cases was documented from newspaper sources, and it was unclear from the account what the assailants’ motivation was or what their sexual orientation was; but in the other case, taken from the victim’s personal testimony, it was clear that the assailants were heterosexual and that they targeted the victim specifically because they perceived (in this case correctly) that he was gay.

It was pretty violent, too — don’t read this next quote if you can’t tolerate graphic detail:

The other men had been drinking, and had brought some beer to the supply room with them.  Some had knives or broken beer bottles, with which they threatened him.  They also hit him.  They laid one of the mattresses from the supply room out.  Subject was raped anally by each of them in turn, and they cut his rectum with a broken beer bottle.

— Green, Melissa S. (1989). “Prima Facie: Documented Cases of Sexual Orientation Bias in Alaska.” In Melissa S. Green and Jay K. Brause, Identity Reports: Sexual Orientation Bias in Alaska (Anchorage, AK: Identity), p. 46.

It’s a common pattern: as anti-rape activists have noted for a good long time, sexual assault and rape are less about sex per se than they are about power, violence, and intimidation. As anyone knows who is familiar with the endemic problem of same-sex prison rape (see the website of Just Detention International, formerly known as Stop Prisoner Rape); as anyone knows who has read Anchorage Daily News reader comments about legislators convicted of corruption, as I have, where there were frequent “joking” references to “Don’t drop the soap” and other references — even outright calls for — the convicted legislators, all men, to be sexually assaulted in prison by other men.  Ha ha, how funny. Not.

Ironic, then,that a unanimous Supreme Court decision that condemns and outlaws such behavior — at least in the workplace — which has has been wielded frequently as a tool of violence and intimidation against people who are or are perceived to be lesbian, gay, bisexual, or trans, should now be used to argue against an ordinance which would prohibit other kinds of unfairly discriminatory behavior against them.

P.S. on reposting

Pam Kelley granted me this permission: “Feel free to put this to any use you want — I’m proud to pop my head up (among the throngs of three-minute experts) to speak clearly about equality.” Hence, ordinance supporters may feel free, with appropriate crediting & link back to this post, to repost this blog entry freely.