Re: Oncale Case
Mon, 09 Mar 1998 20:27:23 -0500

Oncale was NOT about sexual orientation harassment. It was about
harassment based upon gender. Scalia tried to make this clear in his
opinion, by stating that male-male horse play was NOT gender
discrimination. Many circuit courts have found that locker room horse
play is just that --- horse play and NOT gender discrimination via
sexual harassment. Such incidents are NOT actionable. Also, you are
correct in saying that sexual orientation harassment cases have been
brought under the 14th Amendment (if the offender is a state actor) or
state law (although only 11 states/DC have sexual orientation
discrimination coverage). Nabozny, however, was decided as a straight
gender discrimination/disparate treatment claim rather than a sexual
orientation claim. It looked at whether the school handled sexual
harassment complaints by girls more favorably than it handled Nabozny's
claim. It found that the school did and, therefore, the school treated
Nabozny (a male) differently than similarly situated females (those who
had also been harassed by males). This analysis allowed the court to
apply an intermediate scrutiny test to the school's inaction. If the
court had looked at the case as a sexual orientation case, then it would
have applied a rational basis test, which rarely wins (although it did
in Romer v. Evans last year).

Constitutional law has three major levels of scrutiny:
1. Strict scrutiny. If a law or practice has to pass this test, it
usually loses. Race, ethnicity, and religion fall under this test.

2. Intermediate scrutiny. This level is easier to pass than strict
scrutiny. It applies to gender discrimination. Thus, it is easier for
public entities to get away with discriminating against females than
with discriminating against racial or religious minorities.

3. Rational basis. The law or practice usually prevails under this low
level of scrutiny. This level applies to all classifications that do
not fall within a "suspect class." Sexual orientation discrimination is
given this lowest level of scrutiny.

Kristen Galles, Equity Legal,


Darcy Lees wrote:
> It is my understanding that to date cases involving sexual orientation
> harassment have been decided based on the 14th Amendment to the
> Constitution.
> In Washington State where our state law speaks directly to K-12 schools
> and sexual harassment and same gender was specifically written in to be
> covered, I make a distinction between just stating that someone is gay
> or lesbian and referring to sexual acts and actions or statements meant
> to be put downs based on gender, ie. Sissy, etc. In workshops I stress
> 14th Amendment, Title IX, and State law.
> Darcy Lees <>
> _____________________________________________________________________________
> > ----------
> > From: PaulEdison[]
> > Reply To:
> > Sent: Thursday, March 05, 1998 7:40 PM
> > To:
> > Subject: Oncale Case
> >
> >
> >
> > Does anyone know how likely it is that the
> > Supreme Court's decision this week on the Oncale
> > same-sex harassment case will result in cases
> > arising from _sexual-orientation_ harassment?
> >
> > I've heard this in some of the coverage, but was
> > under the impression that previously (including
> > in the OCR Guidance on sexual harassment) sex-
> > orientation harassment has definitely _not_ been
> > covered.
> >
> > Thanks
> > Paul Edison, Gender Issues Education
> > Curriculum/Video for Grades 6-12
> > <>
> >

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