Inc. Oncale v. Sundowner Offshore Services: 1998

Oncale's attorney, Nicholas Canaday III, faced some hard questioning from the justices. The problem, in their view, was that the harassers' gender might not matter, but that the victim had to show that he—or she—had received the offensive treatment because of his—or her—own sex. Only if the harassers would have treated a member of the opposite sex differently than they treated the victim would the harassment then be "because of… sex." But for an all-male oil rig crew—with no easy way of comparing Oncale's treatment to that of what a woman would have received—such a thing would be hard for him to prove.

Finally, however, in a unanimous opinion rendered on March 4, 1998, the Court sided with Oncale. Justice Antonin Scalia, one of the Court's most conservative members, approvingly quoted Justice Ruth Bader Ginsburg (herself a specialist in sex discrimination law: "The critical issue," he pointed out, "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." In other words, the sex of offender and victim did not matter, and Congress' lack of specificity in so mentioning also was not an issue, regardless of what it had intended. Indeed, in his judicial opinions, Scalia rarely relied on what Congress intended, focusing instead on what the law actually stated. This approach made him an excellent choice—given the odd history of the Civil Rights Act's passage—to write the opinion concluding that Oncale should have had the chance to prove that he had been sexually harassed.

The Oncale case revealed that sexual discrimination in American society was becoming far more multifaceted and complex than that of traditional male harassment of women. It also revealed that the courts were growing aware of this fact, adapting a nebulous statute to the needs of society in response.