Employee Rights and Employment Policy Journal

This article discusses the impact of the 1998 U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc. on hostile environment sexual harassment law.  Based on concerns that hostile environment cases already have a heterosexual presumption (or heterosexist bias), the Oncale decision is seen as furthering that presumption and bias even though it claims to offer protection against same-sex sexual harassment.  In other words, "same-sex" does not necessarily include protection for homosexual actors.  In addition, because the Court seems to further confuse, rather than clarify, the issue of causation in hostile environment cases, the decision has an expected negative impact on different-sex hostile environment cases as well.  Sexual language is no longer necessarily viewed as sex-related for causation purposes.  The burden in different-sex cases is therefore made more difficult