OPINION & EDITORIAL
Harassment not just heterosexual
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Also by Rob Hunter:
- Patient Abandonment Bill targets women's rights (April 21, 2005)
- Read ID Act goes too far infringing upon civil liberties (April 28, 2005)
- Gay rights needed to protect equality (May 5, 2005)
- Evolution not about free speech (March 17, 2005)
Related Stories:
- Sexual harassment still common on campus (September 10, 2001)
- What exactly is Speak Up!? (February 28, 2002)
- Ladies: Cover those midriffs (September 13, 2001)
- No one is safe from harassment (November 22, 2002)
- Working toward a fair and equal society (October 21, 2003)
by Rob Hunter
Thursday, September 9, 2004
It’s not sexual harassment if you’re the same sex.
That, at least, was the lesson learned by one Montana plumber.
In 1998, the U.S. Supreme Court determined in the case of Oncale v. Sundowner Offshore Services, Inc. that Title VII prohibitions against sexual harassment in the workplace also cover same-sex harassment as well. And while the fight against sexual harassment of employees and coworkers is still an uphill battle for everyone, it’s proving that much more difficult in cases involving same-sex discrimination.
The Montana Supreme Court recently issued a 4-3 decision in the case of Campbell v. Garden City Plumbing and Heating, Inc. against the plaintiff, Travis Campbell. Campbell had claimed that he was the victim of a constant barrage of sexualized comments, insults and threats from male coworkers in a Missoula-based plumbing business.
In the first case in Montana involving same-sex sexual harassment, the majority of the Supreme Court decided that Campbell had been unable to prove that the treatment he received from his fellow workers was based upon his sex and upheld rulings by a lower court and the Montana Human Rights Commission that the harassment Campbell was subjected to was merely “male-on-male horseplay” that did not rise to the level of sexual harassment. The three dissenting justices, however, said that there was ample evidence that the “base and degrading conduct” was directed at Campbell because he was male.
Campbell began working on the Garden City plumbing crew four years ago. As the newest crew member, he argued, he was the constant target of “graphic and crude comments that almost always referred to ways the other employees intended to use him for their sexual gratification,” according to The Billings Gazette. Campbell said that it was frequently suggested that he would be the unwilling victim of sexual acts committed by the other employees.
Initially, Campbell attempted to downplay the treatment as workplace banter and responded to it as such, but when it continued he complained to a supervisor about being sexually harassed, who (according to the Supreme Court decision) told him that he would not live to testify. After leaving his job, Campbell attempted to file a sexual-harassment complaint, but neither the Montana Human Rights Commission nor Missoula District Judge Douglas Harkin would accept his claim, and now the Montana State Supreme Court has rejected it as well.
The majority opinion dismissed the suggestion that Campbell was the victim of sexual harassment, because “[w]hat is missing in this particular instance is necessary proof of some discriminatory motive.”
It is hard to understand how the majority of the Supreme Court believed that Campbell’s gender was not at the root of his mistreatment. The dissenting justices pointed to several instances of clear harassment, such as frequent threats of sexual assault, sexually charged comments and insults, and frequent gesturing of a sexual nature.
Dissenting Justice Bill Leapheart perhaps put it best when he wrote, “[T]here is no danger that such threats will be mistaken for ordinary socializing in the workplace or as male-on-male horseplay or same-sex roughhousing.”
Even though Campbell argued that “his co-workers would not have said the things they said if [the plaintiff] were not a man,” the majority justices contended that “[w]hile this may or may not be true,” such “workplace policing is exactly what the U.S. Supreme Court had in mind when it warned that Title VII was not … a ‘general civility code.’” What is so surprising about this statement is that the Montana Supreme Court appears to have been unconcerned with whether or not the harassment revolved around sex, which is precisely what the Supreme Court’s Oncale decision made the linchpin in deciding sexual-harassment cases, regardless of the genders involved. The Montana Court majority believed that not only must discrimination occur based on sex, it must be driven by some “discriminatory motive.”
Again, Justice Leapheart wrote on behalf of common sense: “[O]ne wonders what quantum proof is needed” of such motives. Even if Campbell’s coworkers’ “motives” were simply those of getting under the new guy’s skin, their conduct constituted sexual harassment according to the Oncale model. The Montana Supreme Court, however, appears too squeamish to address it at the moment. One wonders what truly egregious kind of same-sex discrimination would be sufficient to garner its condemnation.
Rob Hunter (jhunter@badgerherald.com) is a senior majoring in political science and philosophy.
Anonymous (September 9, 2004 @ 12:28pm):
First of all, anonymous, the fact that there were guys sexually harrassing another guy says nothing about the sexual orientation of the people doing the harrassing. Where I work, straight guys make sexual comments/jokes/harrassment to other straight guys all the time so this isn't a "gay" thing. Sexual harrassment has little to do with the sexual orientation of the harrassers or the person being harrassed. As to the point of the opinion piece, if the point is that the sex of the harrassers has nothing to do with whether or not something is sexual harrassment, I agree, but I have a feeling the author is trying to imply that "gay people are getting away with sexual harrassment" and that, while possibly true, isn't supported by his argument at all.
Rob Hunter (September 9, 2004 @ 4:13pm):
As to the first anonymous post, you've completely missed the point. Sexual orientation is irrelevant to sexual harassment--if you're being harassed, you're being harassed. And leave the rampant homophobia at home.
As to the second anonymous post, I have to admit I'm surprised that you thought I was trying to imply that "the gays are getting away with harassment". What I had hoped to show in the column was that sexual harassment is sexual harassment, period, regardless of you or your harasser's gender or orientation. I sincerely doubt any of Campbell's harassers was homosexual--if any of them were, you can be sure that dozens of conservative organizations and church groups probably would've rallied to Campbell's side to help protect him from being "persecuted". The last thing I want to suggest is that homosexual harassment (on either side) "doesn't matter", or that gays somehow have special protections in this matter.
--Rob Hunter (jrhunter@gmail.com)
Rob Hunter (September 9, 2004 @ 4:16pm):
I should also point out that we columnists don't pick our own headlines, and the one I got for this column DEFINITELY sends the wrong message.
--Rob Hunter (jrhunter@gmail.com)
Rob Hunter (September 9, 2004 @ 4:35pm):
(see related discussion in the Afterthoughts ( http://www.badgerherald.com/weblogs/afterthoughts/ ) weblog)
--Rob Hunter (jrhunter@gmail.com)
Anonymous (September 10, 2004 @ 9:47am):
2nd anonymous poster here - yeah the headline definitely implies that the sexual orientation is the issue you are talking about...thanks for clarifying your point.
Anonymous (May 22, 2005 @ 3:45pm):
Two years ago I had a manager where i work that eventhoug he was married he was dating
a co-worker inthe same department as me , and they were always rubbing one another and he was always used to sent me to the other department se he can be alone with her, i felt quite uncomfortable i mentioned to one of my supervisor but notmuch was done it at respect, becuase he got a promotion , well now he isno longer my my boss and he is still
seeing that particular co-worker , soeverytime the go on lunch together he kiss her , so i mentioned very casual to my supervisor, and one day he called me at her office to made an statment so i told in the
statment that when i see thoese two it reminds me they awful time i had when i used to work with him , so now i guess this is going to be take to Human Resources office as a complain, eventhough it was 2 years ago
