William & Mary Bill of Rights Journal


The unanimous Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc. caught many observers by surprise. Even more surprising than the Court's unanimity on the divisive issue of same-sex harassment, however, was the author of the opinion-the deeply conservative Justice Antonin Scalia. Many commentators suggest that the opinion's requirement that plaintiffs prove that the harassment was "because of sex" will hamper lawsuits arising from single-sex work environments. Attempts to fit the decision within traditional Title VII jurisprudence inevitably will be clouded by conjecture about Scalia's true intent. Indeed, after one year of experience with Oncale, the judicial record is decidedly mixed The debate over Oncale's meaning has manifested itself most clearly in an emerging dispute over the role of summary judgment in resolving harassment cases. Nevertheless, in attempting to apply a new Supreme Court opinion, particularly one joined by all nine Justices, it is the holding of the opinion that must guide the lower courts, not the assorted examples, exhortations, and suggestions that accompany it. The way to make sense of Oncale is to take it at face value, as a victory for a plaintiff who alleged particularly egregious harassment.