Trying to Make Sense of Sexual Harassment Law after <i>Oncale</i>, <i>Holman</i>, and <i>Rene</i>

Abstract

The state of the law governing sexual harassment, which was far from clear, was rendered more turbid by a 1998 U.S. Supreme Court holding that offered examples of specific situations under which such harassment might be actionable. The Court’s ruling in a case of same-sex harassment has muddied the waters by opening the issue of the alleged harasser’s motivation. This provides a defense for harassers who may rebut the accusation that their actions are motivated by sexual interests. In addition to making same-sex harassment difficult to prove, this holding makes it nearly impossible for an individual to make a case of sexual harassment when that harassment is not specifically directed at that person even though the conduct at issue is severe or pervasive. Employers seeking to promote fair play and to prevent claims of sexual harassment must maintain strict no-harassment policies and educate their staffs on the reasons for such policies.