Politics

Out of Order

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When renowned conservative radio talk-show host Armstrong Williams offered Stephen Gregory a job as his personal trainer in 1994, Gregory assumed his new boss was simply interested in shaping up. But when Gregory later became a producer for the radio program, occasionally traveling to speaking engagements with Williams, Williams allegedly began showing an interest that Gregory took as more than merely professional. In a complaint filed on April 10 in D.C. Superior Court, Gregory charges that Williams climbed into his hotel bed on one occasion and refused to leave when Gregory told him to, saying, "I just want some affection." On other occasions, according to the complaint, Williams snuck up on Gregory and grabbed his buttocks or penis, or kissed him on the cheek. Gregory alleges that he avoided his boss's overtures for months, and that Williams retaliated by withholding pay, moving him to a different office and eventually firing him.

Armstrong Williams denies the allegations. He is, he says, the victim of lies, and this may turn out to be so. But even if Williams did act as Gregory alleges, he probably has little to fear from the law. A loophole in Title VII of the 1964 Civil Rights Act, which prohibits discrimination in the workplace based on race, religion, national origin and sex, makes it nearly impossible for victims of same-sex sexual harassment to seek relief. Federal judges have repeatedly thrown out such cases, claiming that men who harass men and women who harass women have different motivations than opposite-sex harassers and thus do not meet the criteria the law has set. As a result, many harassers are going unpunished at a time when hundreds of same-sex harassment cases are filling the lower courts, according to Arthur Leonard, a law professor at the New York Law School who tracks such cases.

Joseph Oncale learned about this anomaly in the law through painful experience. After quitting his job on an oil rig off Louisiana shores in 1991, Oncale accused his employer of allowing a workplace that tolerated an array of physical attacks, including one incident in which a bar of soap was forcibly inserted into Oncale's anus, another where coworkers restrained him while a supervisor placed his penis on Oncale's neck, and still another when a supervisor and coworker threatened to rape him. Denying Oncale's appeal, the Fifth Circuit Court ruled flatly that "same-sex harassment claims are not viable under Title VII."

What derailed Oncale's case and many others begins with the peculiar history of Title VII. Since Congress has never explicitly outlawed sexual harassment, the courts have tried harassment cases under statutes prohibiting sex discrimination, rather than sexual harassment itself. And since same-sex harassers are not technically discriminating based on gender, the court reasons, they are not guilty under the law. "When someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is `because of' the victim's gender," declared the Fourth Circuit Court of Appeals. "But when the harasser and the victim are the same gender, the presumption is just the opposite because such sexually suggestive conduct is usually motivated by entirely different reasons."

To get around this, victims of same-sex harassment must prove that the defendant acted out of "sexual interest," since, as one federal judge put it, "[t]he principal way in which [sexual harassment] may be met is with proof that the harasser acted out of sexual attraction to the employee." For same-sex cases, this requires proving homosexuality, a nearly impossible burden since "proof of such homosexuality must include more than `merely suggestive' conduct." The plaintiff, in other words, must prove that the defendant--who generally claims to be heterosexual--is actually gay.

Like Oncale, Mark McWilliams, a Virginia auto mechanic, couldn't meet these onerous burdens. McWilliams alleges in his court brief that, after he started working at the Fairfax County Equipment Management Transportation Agency, coworkers tied his hands together, blindfolded him and forced him to his knees. In his suit, McWilliams testified that in one instance "a coworker placed his finger in his mouth to simulate an oral sexual act"; on another, a coworker "placed a broomstick to McWilliams's anus while a third exposed his genitals to McWilliams." On yet another occasion, a coworker entered a bus McWilliams was repairing and fondled him.

In throwing out the case, Circuit Judge James Dickson Phillips speculated that the alleged abuse may have been due to the victim's "prudery, or shyness," or perhaps even "the perpetrators' own sexual perversion, or obsession, or insecurity... vulgarity and insensitivity and meanness of spirit." But on one point Phillips was certain: the harassment was not "specifically `because of' the victim's sex."

Such fallacious reasoning opens up another ludicrous loophole in Title VII: that of the bisexual harasser. In one case, a Nevada casino whose manager was accused of sexually harassing a female employee defended itself by stating that the supervisor never actually discriminated against the plaintiff, since he had harassed members of both sexes. In short, he was an equal opportunity harasser. Amazingly, the company prevailed. (The case, Steiner v. Showboat Operating Company, was later overturned only when it was proven that the manager treated women worse than men. While he "may have referred to men as `assholes,'" the court found, "he referred to women as `dumb f*ing broads' and `f*ing cunts'...." Hence, discrimination after all.)

As it stands, federal law is not only silent on the subject of homophobia, but actually rewards people for it. A defendant charged with same-sex harassment, for instance, could claim that he touched and taunted a man he thought was a gay employee merely to humiliate him. Attorney Hayden Coleman notes that, if jurors find the "defendants' comments are simply a degrading and insulting attempt to target plaintiffs' sexuality, they must find for the defendants."

That loophole could close up if Congress passes the Employment Non-Discrimination Act. But even this measure would not eliminate all the opportunities for evasion in Title VII. Only if Congress amended Title VII to specifically outlaw sexual harassment could courts finally find for victims of both same- and opposite-sex harassment. If not, lower courts will continue to establish contradictory precedent until the Supreme Court finally steps in.

And that is exactly what the high court may finally do. Last December, the Court asked the Justice Department for an official opinion on the actionability of Title VII, raising expectations that the Court will take up the appeal in Oncale. But that case will only address the broad question of whether same-sex harassment charges can ever be brought under Title VII, not the more precise question of what actually constitutes same-sex harassment.

Meanwhile, Stephen Gregory's lawyer hopes to get around the current loopholes by filing his complaint in the District of Columbia's court system, which, like nine states, bars both gender and sexual-orientation discrimination. That should give him at least the chance of a fair hearing. Others won't be so lucky.

Joseph Landau is a freelance writer in Washington, D.C.

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