Is this a clear-cut case of sexual discrimination? Sure–if Oncale were a woman. But he isn’t, and that’s the rub. Oncale’s federal sex-discrimination suit against Sundowner was dismissed by the Fifth Circuit Court of Appeals in New Orleans. Oncale was treated outrageously, the court agreed, but it concluded that under federal law there’s no such thing as a man sexually discriminating against another man.
This week the U.S. Supreme Court will hear Oncale’s appeal, and its decision in this legal thicket could decide an issue that’s starting to reverberate in the workplace. Same-sex-discrimination suits–even between heterosexuals–are becoming more common in this era of heightened sensitivity to workplace harassment. Employers worry that expanding the notion of sex discrimination will produce a barrage of suits from men complaining about everyday boorish behavior, like pats on the buttocks or dirty jokes. Oncale, now 27 and the father of two children, contends that the law makes no distinction between male and female workers. ““Harassment is blind,’’ he says. ““If you’re being harassed, you’re being harassed.''
The courts don’t see the issue that simply. Federal appeals courts are badly split over how broadly to interpret Title VII of the Civil Rights Act, the landmark law that prohibits employers from discriminating against someone ““because of’’ his or her sex, race and religion. In 1986 the Supreme Court famously expanded the law’s definition of discrimination to include sexual harassment that creates a ““hostile environment.’’ But with same-sex suits the question is ““How do you distinguish sexual harassment from other forms of harassment,’’ like bullying, says Erwin Chemerinsky, a law professor at the University of Southern California.
Some courts have made the distinction that same-sex suits are valid only if the harasser is gay. Last year the Fourth Circuit Court of Appeals, based in Richmond, Va., upheld the dismissal of a case in which a mechanic had charged that his colleagues–all heterosexuals–had displayed Playboy magazines in the men’s rooms and listened to sexually explicit radio talk shows. The court said it’s ““common sense’’ that a heterosexual male can’t target another one ““because of’’ his sex–but implied that a gay male might. The ruling puts courts in the potentially ridiculous position of probing a plaintiff’s sexual orientation. Under this test, critics say, a harasser who’s bisexual is in luck–he could fend off a claim by insisting he’s 100 percent heterosexual.
But many federal courts are taking a more expansive view: if the harassment was sexual in nature–regardless of who’s doing it–then it’s illegal. In a case decided last year, a worker at a muffler plant in Iowa charged that workers had repeatedly grabbed his testicles, called ““bagging’’ at the plant. The worker, Phil Quick, argued that the nature of the harassment–aiming at his genitals–clearly showed that he was targeted because of his gender. His employer, Donaldson Co. Inc., responded that Quick wasn’t singled out–lots of men at the plant were grabbed in the groin as part of everyday horseplay. But the Eighth Circuit Court of Appeals in St. Louis agreed that Quick had suffered because he was a man, and it didn’t matter that the alleged perpetrators were heterosexuals. Donaldson later settled with Quick.
Critics complain that such decisions are distorting a civil-rights law that’s supposed to protect women against male bosses–not to police rowdy behavior. The Oncale case ““has nothing to do with discrimination,’’ said Samuel Issacharoff, a Sundowner lawyer. ““It is just an assault that has a sexual component to it.’’ These cases, he says, should be tried in state criminal and civil courts. (And, in fact, same-sex-harassment suits are also on the rise at the state level, where juries have handed out hefty verdicts in recent years.) Oncale’s supporters say predictions of frivolous lawsuits are a red herring; plaintiffs would still have to show pervasive harassment. Besides, this concern has a familiar ring. As a Chicago appeals-court judge wrote in July, the same argument was made when women started suing for sexual harassment–back in the 1970s.
title: “Men Behaving Badly” ShowToc: true date: “2022-12-12” author: “Eric Scott”
Welcome to New York City’s white-collar roundball leagues, where staid businessmen hone their jump shots and discover their inner beasts. Bill Bradley as role model? More like Attila the Hun. You think Wall Streeters are aggressive by day? When they take off the pinstripes and put on the sweats at night, you’d think they were members of the World Wrestling Federation. The competitive spirit of the trading floors and courtrooms clearly spills over to these parquet courts. And so does some of the excess. That big fella over there doesn’t look like he does debentures for a living? Actually, he’s just a ringer.
And then there’s the legend of Al Palagonia, once dubbed “the best salesman on Wall Street.” Playing for Al’s Team Palagonia meant perks galore. After games, the former broker for D.H. Blair treated players to dinners at the best steakhouses. But Al’s team crossed the line. Last year a melee broke out during play. Benches cleared and someone punched the “commissioner” in the head. The police were called. Palagonia’s team was banned from the league for life.
To be sure, not all the games are blood sport. Most are a chance to swap business cards and get a workout. Hundreds of teams from Wall Street firms like Goldman, Sachs and Merrill Lynch pay about $1,500 a season to enter teams. In the winter season alone, there are more than 500 teams. Winning means boosting not just an ego, but perhaps a career. “You get some recognition from the company,” says Jermaine Sams, who works for an ad agency. You’d have thought recognition came from revenue and clients–but such is the hold that sports can have. It also explains the popularity of fleet-footed ringers. Seth Akabas–founding partner of one of the Lawyers Basketball League’s best teams, Akabas & Cohen–admits he’s the only player who works at his firm. The rules vary by professional league. You don’t need a law degree, for example, to play in the lawyers league. But most players have to be involved in the legal profession, and all must be college grads. Other leagues have equally specific rules.
Firms are especially fond of scouring the support staff. Whenever his law firm hired a tall paralegal, says Cliff Chenfeld, who used to practice at Sullivan & Cromwell, “there was a palpable buzz in the office.” Chenfeld says that in his playing days the firm would send a limo to pick him up for games. He didn’t think the firm bigwigs knew, but “I guess the guys on the basketball team could do whatever they wanted.” Then one day the cars stopped. “I got too old,” he jokes.
Some lawyers, being lawyers, are less good humored than Chenfeld. Even the precise rules spelling out who is eligible don’t prevent all kinds of challenges. Some players have filed thick briefs to league officials. Reads one: “Under information and belief, the petitioner asserts that the player in question has been periodically seen delivering packages by bicycle on Sixth Avenue. It is petitioner’s contention that such activity does not constitute ‘substantive legal work’.” Lawyers–go figure.
