Oncale v. Sundowner Offshore Services Incorporated et al.

At the time of decision, Oncale was 27 years of age, married, with two children. For the first time the Court clarified an employers, liability for instances of sexual harassment between two people of the same gender. Critics of the Oncale decision quickly claimed the Court distorted the Civil Rights Act which they asserted was specifically intended to protect female employees from discrimination by male supervisors. The distinction between rowdy behavior, perhaps involving assault, was blurred with sexual harassment.

The Court decided two other sexual harassment cases later in 1998 in addition to Oncale. The three cases posed substantial changes to many businesses. In Faragher v. City of Boca Raton (1998), the Court ruled that an employer held responsibility for harassment situations, regardless of whether it was aware of an harassment situation. In Burlington Industries v. Ellerth (1998), the Court ruled that a harassed employee did not need to demonstrate a tangible job loss to successfully prove sexually harassment. The victim, in fact, never reported the incidents of sexual harassment and actually received a promotion before resigning and 15 months later filing the lawsuit.

Oncale as well as the other cases raised the issue of what the word "sex" means in sexual discrimination law. Debates continued as to whether sex referred to the gender of the victim, gender of the harasser, the type of behavior involved, or all three. Same-sex issues highlighted that for behavior to be unlawful, it must be motivated by hostility as well as sexual desire. In fact, sexual desire need not be a factor. Hostility based on the gender of the victim could be sufficient to prove a case. However, hostility without the factor of gender does not constitute sexual harassment and does not generally violate federal law. Employers were put on alert that their legal liability for sexual harassment could arise from diverse situations, not just the commonly imagined male harassment of female form. Many employers reassessed their sexual harassment policies and enhanced their employee training programs.