Oncale v. Sundowner Offshore Services, Inc. - Oral Argument

Argument of Nicholas Canaday, III

Chief Justice Rehnquist: We'll hear argument now in Number 96-568, Joseph Oncale v. Sundowner's Offshore Services, Inc.--

Mr. Canaday.

Mr. Canaday: Mr. Chief Justice, and may it please the Court:

Rejecting Joseph Oncale's title VII claims, the Fifth Circuit stated, same-sex harassment claims are not cognizable under title VII.

The question presented through this appeal is whether the Fifth Circuit's categorical rejection of same-sex claims under title VII is correct.

We argue that it is not.

The court below should be reversed.

Same-sex sexual harassment claims are actionable under title VII.

This case is not about the outer limits or parameters of same-sex sexual harassment as an actionable form of discrimination because of sex, nor is this case about the methods of proof of such a claim.

This case is about whether a same-sex sexual harassment claim exists as a matter of law.

The Fifth Circuit rule that same-sex claims do not exist under title VII is not sex-specific.

It is an absolute rule.

Both sides to this litigation agree that women are entitled to the protections of title VII, but to accept the Fifth Circuit rule is to accept the proposition that a woman's right to work in an environment free of unwelcome sexual conduct, or sexual solicitation, turns on the sex of her harasser.

If the harasser is a female, the woman has no rights or remedies under title VII as interpreted by the Fifth Circuit.

Unknown Speaker: I thought this case involved a man.

Mr. Canaday: It does, Your Honor.

This case does involve a man, but I emphasize that the Fifth Circuit's ruling is not a male-on-male decision, it is a same-sex decision, and I emphasize that to point out the breadth of the Fifth Circuit's categorical and absolute rule that same-gender sexual harassment claims, regardless of the genders, as long as they're identical, and regardless of the underlying facts, would, under the Fifth Circuit's rule, be dismissed as a matter of law, but Your Honor, you're exactly correct, this is a male-on-male situation, but the court did not decide the case on that fact except to recognize that the genders of the two parties, the harasser and the victim, were the same.

So to accept the Fifth Circuit's rule, then, is to agree that the sex of the harasser defines the scope of title VII.

Unknown Speaker: Not necessarily.

I mean, you could say if the harasser, whoever he or she is, treats members of one sex, whether the same sex as the harasser or the opposite sex, differently, you could... so you... if you have a difference of... in treatment by the perpetrator of males and females, that's one thing.

So I don't think that the Fifth Circuit has ruled quite as broadly as you suggest.

You could have a male perpetrator and a male victim.

Mr. Canaday: Your Honor, the Fifth Circuit has ruled categorically that if there is a male victim and a male perpetrator they do not look at the underlying facts or circumstances of the harassment.

They decided as a matter of law that same-gender causes of actions do not exist.

The Fifth Circuit's rule would be equally applicable were this a woman-on-woman case.

The fact that it is male-on-male--

Unknown Speaker: But my point is, this was an all-male environment, too, and wasn't that... don't we have to take the decision in that context?

In other words, they didn't say that if you have an employer who treats members of one sex one way and members of another sex another way there would still be no claim under title VII if the victim is a male and the perpetrator is a male.

They didn't say that.

There was no other sex involved in this case.

Mr. Canaday: --That is correct, there was no other sex involved, but that factual determination is not the foundation of the Fifth Circuit's rule.

The Fifth Circuit's rule is a categorical rule.

The Fifth Circuit in fact did not discern or consider the underlying circumstances or the maleness of the workplace.

The Fifth Circuit's rule is the broadest of possible brushes.

It's an absolute rule.

Unknown Speaker: Well, as I understand, Mr. Canaday, you're not asking us to decide whether or not there was discrimination in this case.

You're simply asking us to say that the fact that it was male on male does not prevent there from having been discrimination.

Mr. Canaday: Your Honor, that's exactly correct, because my case was thrown out as a matter of law.

The court below found that no facts were material.

The court below did not review the facts and determine which facts of the alleged harassing situation were material.

They didn't decide this case as a matter of fact.

They decided this case as a matter of law.

Unknown Speaker: Well, what are you going to have to show if you prevail?

What does a judge tell the jury?

Ladies and gentlemen of the jury, you may find for the plaintiff if, what?

Mr. Canaday: We would prevail if the jury was instructed that sexual harassment is a cognizable form of discrimination based on sex.

The jury could then be instructed on the law as established in the circuits and as articulated by this Court, and then the court, the trier of fact could draw the reasonable inference... well, first of all, under the facts alleged the trier of fact could determine that Joseph Oncale was quid pro... the victim of quid pro quo sexual harassment, or the trier of fact, under the facts as they currently stand, could find that Joseph Oncale was victimized of a hostile sexual environment.

Unknown Speaker: But title VII doesn't speak of sexual harassment or a hostile sexual environment.

That is a part of a... the basic is discrimination.

You would have to show that he was treated differently because he was a man, would you not?

Mr. Canaday: Your Honor, we would have to show that discrimination because of sex, as defined by this Court in the Meritor case, did in fact occur, yes, sir.

Unknown Speaker: Well, suppose you had a case in which an uncouth supervisor tells very offensive and suggestive jokes to both sexes.

Mr. Canaday: Well, on the facts--

Unknown Speaker: Or, in your case, if we could change the facts a little bit, if almost the same conduct was perpetrated against both sexes by this supervisor?

Mr. Canaday: --If it is the off-color, or the poor joke case, Your Honor, I believe the argument then would be, or the issue then would be whether or not the severity or pervasiveness of the conduct raised the level--

Unknown Speaker: Well, you know what I'm trying to say.

Mr. Canaday: --Yes, sir.

If the facts were that the... all employees of both genders are treated equally, the equal opportunity harasser... first of all, let me emphasize that's not this case.

Unknown Speaker: I understand.

Mr. Canaday: But assume hypothetically it was, then the question would be whether or not that under the facts you could... the jury could discern an attempt to discriminate based on sex.

So--

Unknown Speaker: So you're saying that the other sexual harasser, or the homosexual harasser is liable, but the bisexual harasser is not.

Mr. Canaday: --No.

Unknown Speaker: That there is immunity for the bisexual harasser.

Mr. Canaday: No, sir.

That is not our position in this case.

Unknown Speaker: Oh, I thought... I thought--

Mr. Canaday: No, sir.

If I stated that, I misspoke.

Unknown Speaker: --Well, if not, why is there discrimination?

I think that's what we're both asking.

Mr. Canaday: In the pure... in the true bisexual harasser scenario, which again this case is not, the court could then look at the sexual nature of the conduct and could, under existing precedent, argue that each victim was a victim of sexual harassment.

Unknown Speaker: No.

Each victim would have been a victim of... would have been discriminated against on the basis of that person's sexuality, but not on the basis of that person's sex, because it was indifferent to the harasser whether the person was male or female.

Mr. Canaday: But the individual claimant, Your Honor, who brought the cause of action alleging that he or she was the victim of sexual discrimination could demonstrate that their work environment was a discriminatorily hostile work environment and then, perhaps as a matter of defense--

Unknown Speaker: No more so than people of the other sex.

Mr. Canaday: --Then that would be--

Unknown Speaker: That's what the person has to show.

Mr. Canaday: --But that would be a matter of affirmative defense, would it not, not as matter of an element of cause of action.

If that person shows that they are singled out for mistreatment based upon sex--

Unknown Speaker: Yes, if they show they're singled out.

Mr. Canaday: --Yes.

Unknown Speaker: But the point is, they haven't been singled out.

This person treats males and females alike.

Mr. Canaday: Right, and again, if that was--

Unknown Speaker: I just wonder... you know, if you acknowledge that the bisexual harasser does not violate this law, I just wonder how that transfers over to the case that you have.

Mr. Canaday: --Well, I do not believe it transfers over to the case that I have because the case before you now is the first-step case as to whether the cause of action exists and secondly, in my case, only men were harassed under the situation on the Sundowner rig.

Only Joseph Oncale was harassed.

Unknown Speaker: No, but you don't concede as a matter of law, do you, that the bisexual harasser cannot harass on the basis of sex?

Mr. Canaday: That is exactly correct.

Unknown Speaker: I mean, a person may be quite neutral on sexuality and still in fact discriminate on the basis of sex, and you're not conceding that fact.

Mr. Canaday: Absolutely not, sir.

Unknown Speaker: Okay.

Mr. Canaday: Your Honor.

I do not concede that.

Unknown Speaker: Well, are you taking the position that any harassment, provided that it's grave, fits under title VII, then?

Mr. Canaday: No, Your Honor, we're not taking the position that any harassment--

Unknown Speaker: So what would you exclude?

Mr. Canaday: --Well, I believe that the exclusions would be a matter of fact, whether or not it... whether or not the harassment was shown as a matter of fact to raise to the level of severity of the--

Unknown Speaker: Oh, let's assume that it's very gross, but... so... and it meets all the standards of our case law about it has to be pervasive and grave.

Is there any category that you would then omit, or are you saying that all sexual harassment, provided it meets the standards of being severe and pervasive, fits under title VII?

Mr. Canaday: --If... assuming the harassment does raise to the level of severity and pervasiveness and would be recognized as sexual harassment, then our position is that the gender of the harasser vis-a-vis the gender of the victim is not a material fact.

Unknown Speaker: Well, why is that discrimination, then?

You would agree that you also have to show that the harasser is discriminating--

--Yes--

--on the basis of sex, which the statute says, would you not, that he is treating, or she is treating one sex differently from the other?

Mr. Canaday: I believe that's an essential element of the cause of action, but the Fifth Circuit in this case said that those circumstances could never be proved in a same-gender sexual harassment claim.

These questions that the court have posed are questions of proof, or questions of motive, but not of questions of definition.

Unknown Speaker: No, but it's also a question of how we're going to write the opinion.

I mean, maybe you would prevail under these facts, but we have to understand the nature of the cause of action, and we're asking you why there is discrimination in some of these hypotheticals that we have posed.

Mr. Canaday: Your Honor, there is discrimination because Joseph Oncale in this case, alone among men in a workplace, was selected by his supervisor, a male, to be the victim of that male supervisor's unsolicited, unwanted, and obnoxious sexual advances.

That is sexual harassment.

Unknown Speaker: I wouldn't really call them sexual advances.

It was certainly not... a lot cruder than that, but suppose... suppose that Mr. Oncale had been hazed, which is what the other side says.

This is just, you know, good frolics, and male hazing.

Suppose he had been hazed in some other fashion.

I mean, just as obnoxious, but just not... you know, nothing to do with genitals or anything else.

They just said, you know, you're a fat slob.

Your eyes are crooked.

And, you know, they just made life miserable.

The same, but... just as obnoxious.

Mr. Canaday: But removing the element of sex, then--

Unknown Speaker: Well, just using something else, other than his manhood, as the basis for the hazing.

Mr. Canaday: --Then he would not have... I don't believe, under that fact pattern, he would have a right of action under title VII.

Unknown Speaker: You see, I find that difficult to understand.

I mean, that... he's still singling out this person.

Mr. Canaday: Well, if--

Unknown Speaker: I don't know why singling him out on the basis of his sexuality means that you're singling him out on the basis of his sex.

Mr. Canaday: --Well, I believe that what we've argued in brief is that it is... the singling out for sex-specific or sex-driven conduct is one category, this category, but your hypothetical--

Unknown Speaker: Why is that?

Is this a law... I mean, is this a dirty-word law, or something?

It wasn't meant to produce politeness and--

Mr. Canaday: --Right.

To answer your question, though, you asked earlier, Your Honor, is if the conduct was devoid of sexual connotations, or didn't involve grabbing Mr. Oncale's genitalia, or didn't involve use of a bar of soap in a shower, as this case did, then perhaps there would have to be showing of modus, or motive, or intent, or animus, independent of the facts.

But given that this man was singled out for sexual abuse by his supervisors, the component of sexuality as a component of... because of his sex is inherent in the fact pattern.

Unknown Speaker: --Well, take Justice Scalia's hypothesis that the hazing here did not involve genitals, but just very nasty treatment.

Now, if you could show the supervisor, or whoever was the hazer, did not treat women the same way given the same circumstances, then I suppose you could make out a claim of discrimination.

Mr. Canaday: Yes, sir.

Unknown Speaker: But just the hazing by itself, unless you can show that men are treated differently than women, doesn't make out a claim.

Mr. Canaday: I believe if the harassing conduct is nonsexual then the plaintiff would have a burden of establishing a disparity of treatment and show that perhaps that supervisor didn't treat women the same way so as to show the motive to--

Unknown Speaker: But supposing it is sexual, you still have to show different treatment of men versus women, do you not?

Mr. Canaday: --You have to show that this individual was harassed or discriminated against because of his sex.

Unknown Speaker: And to be discriminated against, that is, treated differently than someone of the other sex.

Mr. Canaday: That is true.

Unknown Speaker: Isn't your point here that when the hazing is of the sexual nature here, simply by proving what went on, you make a stronger prima facie case that in fact there was sex discrimination going on than you would be if you were merely to prove hazing of a totally nonsexual nature?

Isn't that the real difference?

Mr. Canaday: Yes, Your Honor, it is.

Unknown Speaker: But theoretically your burden is the same.

In this case, your burden is to prove that in fact these... the individual defendants here would not have treated women the same way they were treating this man.

Mr. Canaday: Yes, Your Honor, in--

Unknown Speaker: And that the employer would not have reacted or have condoned this sort of treatment in a women... had women been the object of it, whereas they have condoned it in this case.

Those are your two burdens, then.

Mr. Canaday: --Right, and the manner in which members of the opposite gender are treated and the manner in which the employer may respond to--

Unknown Speaker: But how could you show that for an all-male workforce?

That's... you seem to be thinking that it's irrelevant that we don't have any comparison group, and yet you answered Justice Souter, yes, it is relevant.

Where you have an all-male workforce, how can we know how the... this... these gross people would have treated women, or how the employer would have reacted to it?

Mr. Canaday: --Your Honor, it may well be relevant, but we do not concede that it's determinative.

Unknown Speaker: But how would you prove anything at all about it, because what evidence would you have about how women would have been treated had they been in the workplace?

Mr. Canaday: We might be able to show how women were treated in other circumstances, in other work offices of Sundowner, or how they responded to sexual harassments by other individuals.

We may be able to demonstrate that Mr. Lyons may confess that had Joseph Oncale not been a man he never would have done that.

In the current posture of this case we haven't had an opportunity to take Mr. Lyons' deposition, but those are the types of questions we would certainly explore with him.

I'd like to save some time for rebuttal, if I may.

Unknown Speaker: Very well, Mr. Canaday.

Mr. Kneedler.

Argument of Edwin S. Kneedler

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

Unknown Speaker: Mr. Kneedler, will you please get into this question of what a plaintiff has to show when it's a same-sex situation, in the Government's view?

Mr. Kneedler: --Yes.

The--

Unknown Speaker: Is there an element of discrimination?

Mr. Kneedler: --The--

Unknown Speaker: And how can that be shown?

Mr. Kneedler: --The test under title VII is whether a person was treated in the way he or she was because of that employee's sex.

As this Court said in Vinson, to quote, without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminates on the basis of sex, or, put another way, as in Manhart, when the person is treated in a manner different from what he would have been treated if gender had not been taken into account.

The question of how someone of the opposite sex is treated is one way of proving that ultimate question, but the Court in Vinson regarded it as treating someone because of their sex as discrimination.

Unknown Speaker: How can that possibly be involved in this case?

I mean, there were other men in the workplace who weren't treated this way.

They just didn't like this guy.

Mr. Kneedler: Well, that... there's a difference between motive and treatment.

I mean, if we look at Harris, for example, in Harris the harassment was explicitly sexual, sex-based.

The employer was saying, you dumb woman, comments like that.

It was facially sex-based, just like in Johnson Controls the policy with respect to employment was explicitly sex-based, and the Court said when you have something that's explicitly sex-based the motive behind that does not detract from the fact that it is a violation of title VII.

And when you... in the opposite gender harassment cases the courts, lower courts have been prepared to assume, as I think this Court's descriptions in Vinson and Harris have, that it is because of sex.

Now, that may--

Unknown Speaker: So it's a presumption?

Justice Souter used the kinder, gentler word of prima facie case.

Mr. Kneedler: --Yes.

Unknown Speaker: But is there a presumption that this kind of conduct is discriminatory?

Is that what you're saying?

Mr. Kneedler: Well, I think that the courts have assumed that it's because of sex, that there's something relational about sex.

Unknown Speaker: But the statute requires discrimination, and that's what we're puzzled--

Mr. Kneedler: The... what I was saying, though, is that it prohibits action because of sex.

It was intended to remove race, sex, national origin from the decision-making process.

Unknown Speaker: --Well, because of the sex of the victim.

Mr. Kneedler: Yes, because of the--

Unknown Speaker: Isn't that right?

Mr. Kneedler: --Because of the sex of the victim.

Unknown Speaker: Okay.

So suppose you have an employer who has the unfortunate habit of patting every single employee, male or female, on the fanny every day, indiscriminately, both sexes.

Now, how do you show sexual harassment under that discrimination requirement of title VII?

Mr. Kneedler: It may well be that in that situation the conduct is not because of the recipient's... of the victim's sex.

That is the requirement, and as the Court said in Harris, this is a question of the facts and circumstances and the severity--

Unknown Speaker: You're concentrating on because of sex, which is in the statute, I agree, but discriminate... discriminate is also a word in the statute, and you're leaving that out of your analysis, it seems to me.

Mr. Kneedler: --Well, it textually... this is a constructive discharge case, among other things, and the statute says it's an unlawful employment practice to fail or refuse to hire... excuse me, or to discharge an individual or otherwise discriminate because of the individual's sex.

The suggestion textually, discharge because of sex, is taken to be discrimination in that situation, and this is consistent with the purpose of title VII, which is to render irrelevant a person's sex, just as the person's race or national origin is to be irrelevant in the workplace.

So if you have... in the hypothetical equal opportunity harasser, if someone uses explicitly sex-based harassing terms, rising to the level of offensiveness at issue in Harris, against women using sex-specific words and men using derogatory, sex-specific terms, each of those employees experiences the terms and conditions of his or her employment--

Unknown Speaker: I don't see how you can get that out of the statute, Mr. Kneedler.

It says discriminate.

Mr. Kneedler: --Well, each... going back to Manhart, the question is--

Unknown Speaker: Well, but I'm talking about the statute.

I'm not--

Mr. Kneedler: --But the words used, discriminate means treat differently, or a draw a distinction between, and the words chosen for the harassment of the woman are different from the words chosen of the harassment of the man, and specifically because of the recipient's--

Unknown Speaker: --Well then, Justice O'Connor's hypothetical, then, would not meet the statute because no words were chosen.

Each one is just patted on the fanny.

Mr. Kneedler: --And it is not... it is not... perhaps looked at in other ways, it's not facially sex-based.

In the opposite sex sexual harassment cases the courts have been prepared to assume, I think, that it is because of sex.

Maybe that's an assumption about human behavior, and probably an accurate one.

It is seldom the case that the victim, or the other person's sex is irrelevant in sexual conduct.

Sex is relational.

It's done with regard to the sex of the other person, whether it's the same sex or opposite sex.

Unknown Speaker: I find it difficult to see that there ought to be a distinction, with regard to the application of this law, whether the particular individual who was harassed in this case is made to feel small and insignificant and embarrassed by using dirty sex words or in some other fashion.

I can't see how that would have anything to do with whether he's being discriminated against on the basis of his sex.

You're telling me if you call him a jerk every day, that's okay, but if you use some sex-related word it's not okay.

Mr. Kneedler: Well, it's not--

Unknown Speaker: That doesn't make any sense.

Mr. Kneedler: --It wouldn't be okay... if you have very abusive conduct that is not sex-based on its face, it would still be open to the employee to show that it is because of the employee's sex by showing that women were not treated in the same way.

But where it is explicitly sex-based, where it is by use of the sex organs, it would at least be a permissible inference for a finder of fact to conclude that this conduct would not have been engaged in with a woman, that this was done--

Unknown Speaker: A mandatory... would it be a mandatory conclusion?

Does it go to the jury?

You know, if... do you tell the jury, if you find that the reason they were giving this man a hard time, including through sexual acts and so forth, is because of his sex, you will find for the plaintiff.

However, if you think they were doing this just because for some reason they didn't like this guy--

Mr. Kneedler: --Well, I think again--

Unknown Speaker: --you won't find for the plaintiff?

Mr. Kneedler: --It would depend on the facts and circumstances.

If the--

Unknown Speaker: I just want to know what the charge is.

Mr. Kneedler: --Well, the charge would be that it has to be because of sex, and I would think ordinarily that would be... the jury could draw an inference... I think it should go to the jury, but it's a question--

Unknown Speaker: Would the instruction that I just gave... if you think the reason they did these sex-based acts is because they didn't like his sex, that's one thing, if you think they did it just because they didn't like this jerk, that's something else--

Mr. Kneedler: --But if the method that was done was sex-specific... for example, the grabbing of the genitals--

Unknown Speaker: --Yes, right.

Then what?

Even if it's not, wouldn't you also say, even if it's not sex-specific, even if it doesn't get beyond the point of calling the person a jerk, if the employer calls males he doesn't like jerks, and does not do the same thing for females he doesn't like, that would qualify under the statute?

Mr. Kneedler: --Right.

No, absolutely.

No, I didn't mean to suggest otherwise.

Unknown Speaker: Sure.

Sure.

Sure.

I... that's no question.

I'm talking about this case, an all-male workforce, and they have picked on this fellow, and they've picked on him in ways that have sexual connotations.

What charge do you give to the jury?

Is it enough that they've picked on him in ways that have sexual connotations?

If you find that they did this, there has been sexual discrimination.

Is that the charge?

Mr. Kneedler: Well--

Unknown Speaker: Or do you tell the jury, in addition to finding that they did this, you have to find that they did it because they didn't like his maleness, and it... this was not just some other way of hazing him.

Mr. Kneedler: --No, I think the question is, was he treated in a manner but for the fact that he was a man he would have been treated differently, and the fact that it was sexual conduct is a permissible basis upon which a trier of fact can conclude that that was so.

I mean, this conduct may have been--

Unknown Speaker: Well, would it be wrong for the judge to charge, you make a decision.

Was it because of his sex?

Did they want to demean him because they didn't consider him sufficiently male, or was it just that they didn't like him and they used this disgusting way of showing it?

Would that be a proper charge?

Mr. Kneedler: --Well, it might be, but I just want to make clear, for example, in--

Unknown Speaker: Well, under--

Mr. Kneedler: --that if something is... if the method... it's not just the identity of the person.

if the manner of the treatment is selected because of the sex of the person, in this case placing the penis on the person's head because it was... it would be regarded as especially humiliating for a man to be subjected to that treatment, then the manner of treatment as well as the selection of the individual, if that is because of sex, then there is a violation of--

Unknown Speaker: --Well, you're leaving out the word discriminate, which is in the statute.

You're just looking at the part of the statute that says, because of.

Now, don't you have to at least instruct on... that a discrimination because of the individual's sex--

Mr. Kneedler: --Justice O'Connor, I think as in Price Waterhouse, the question of how a woman would have been treated, or a man, in that case, may be evidence that goes to whether the person... whether sex was made relevant in the action, but the ultimate question is whether something that shouldn't have been relevant was made relevant in that--

Unknown Speaker: --Thank you, Mr. Kneedler.

Mr. Reasoner, we'll hear from you.

Argument of Harry M. Reasoner

Mr. Reasoner: Mr. Chief Justice, and may it please the Court:

I would like to rest our argument on three points, to the extent that the Court would permit.

First, I think the question by Mr. Chief Justice about the relationship of sexual harassment to this discrimination statute is at the heart of the case.

This is a discrimination statute.

It was passed in 1964, clearly, we submit by its plain language to deal with discrimination between men and women.

In our language, words take their meaning from the context, and in the context of this statute it did refer to discrimination between men and women.

Sexual harassment, although both the Government and petitioner treat it as if it were an independent, statutory concept not tied to the fundamental finding of discrimination, is not an independent--

Unknown Speaker: Mr. Reasoner, can I ask you sort of a basic question?

Your opponent relied on the Manhart case.

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: Which I guess the basic test is, if this person would have been treated differently if he had been of the opposite sex, then that's a prima facie proof of discrimination.

Mr. Reasoner: Yes, Your Honor.

Unknown Speaker: Would you agree that if the jury could reasonably infer from the set of circumstances that the same thing would not have happened if this person had been a woman, that then that would be the necessary showing of discrimination?

Mr. Reasoner: I would not, Your Honor.

Unknown Speaker: You would not.

Mr. Reasoner: And if I might attempt to explain, I think that when you... that the Court extended the statute to say that sexual harassment can so affect the conditions of employment that it violates the statute, creates discrimination.

That is clearly powerfully true with regard to women.

Congress was well-informed on that.

They had passed in 1963 the Equal Pay Act, and so to extend the statute to say if you are harassing women in the workplace you are creating a discrimination which deprives them of a level playing field.

We do not... and I think that this extension is reasonable.

The question that is now being asked, the Court is now being asked to do is say, you have extended sexual harassment into the area of men and women, discrimination between men and women.

Now we want you to extend it to regulate the conduct of men.

Sexual--

Unknown Speaker: The statute doesn't say either women or men.

It says sex.

Mr. Reasoner: --It says because of sex, Your Honor, correct, and I would interpret that to mean the two sexes, men and women.

Unknown Speaker: Yes.

There are only two, so far as we know.

[Laughter]

But you answered my question by saying, if there was a fair inference for the jury to draw that the man was treated differently because he was not a woman, that a woman would have been treated one way and a man a different way, that's not discrimination.

Mr. Reasoner: What I would--

Unknown Speaker: I think that's how you answered me.

Mr. Reasoner: --I think I did, too.

What I'm trying to say, at least, is this.

If we move into Federal regulation the whole spectrum of male relationships which are sexually, which have sexual content and are abusive and in the workplace... and I submit to you, that is what both the petitioner and the Government are asking for.

If you look at page 21 of the Government's paper, in response to Justice O'Connor and Justice Ginsburg's question, they would include it all, all male conduct that has a sexual content that is in the workplace and is abusive.

Unknown Speaker: And supposing we disagree with that.

We're not bound by what they said.

Supposing we say, this is just a discrimination statute.

Then why doesn't it apply in the hypo I give you?

Mr. Reasoner: If Mr. Oncale would have been treated differently if he had been a woman?

Unknown Speaker: If the evidence were clear that the... that if a woman had been on the barge, that he would not have done this because he had a special interest in relationships with men, if that was clearly proved--

Mr. Reasoner: Your Honor--

Unknown Speaker: --would that... why would that not be discrimination within the meaning of the statute?

Mr. Reasoner: --Let me suggest to you why I think that the statute should not be applied in that way, and three circuits have followed that notion.

The Fourth Circuit, Sixth Circuit, and the Eleventh Circuit have adopted the concept of a homosexual... if the homosexual... there's a homosexual harassment, then they can meet the because-of-sex requirement.

You would argue that if you can find homosexuality, or raise an issue of homosexuality, then it was because of Mr. Oncale's sex that this occurred.

I--

Unknown Speaker: But employers can discriminate because of sex without the discriminator having any particular sexual desires for the victim of the discrimination.

I mean, under the Fifth Circuit's ruling a man who discriminates against a man or a woman who discriminates against a woman in the workplace is immune, and it seems to me that's very difficult to justify.

Mr. Reasoner: --I... with respect, Mr. Chief Justice, I would say that is an overstatement of the Fifth Circuit's position, as I would understand it.

I think you must bear in mind that the Fifth Circuit was speaking only to sexual harassment, and only to the question that when the Court has extended this discrimination statute into the area of sexual harassment to meet its purposes, should it then extend it further to regulate same-sex conduct?

Unknown Speaker: I don't know that we regard it as an extension of the statute to say that it covered sexual harassment.

I think what we said was that sexual harassment without actual resulting in a discharge or a demotion was nonetheless actionable.

I don't think we changed the actors involved.

Mr. Reasoner: I think, Your Honor, what... Mr. Chief Justice, what I understood you to say in Meritor is that sexual harassment can be equivalent to discrimination if it is so severe and pervasive that it changes the conditions of employment, thereby discriminating against the sex being harassed.

Unknown Speaker: Well, sexual harassment directed in a discriminatory way against a victim, but certainly we didn't say that sexual harassment that was meted out equally to everybody is discrimination.

Mr. Reasoner: Well, yes, Mr. Chief Justice, I agree with that, and both in Meritor and Harris you were dealing with sexual harassment of women, very clear based on congressional findings... I mean, that there was a disparity.

There's a disparity in power.

There was a need to level--

Unknown Speaker: But there were no findings at all in connection with the inclusion of sex in the 1964 acts.

Mr. Reasoner: --I would submit, Your Honor, that the Court can look to the Equal Pay Act of 1963, that there were extensive findings by Congress that there was a disparate treatment of women in the workplace.

My point on federalism is that there are no findings, anywhere, that suggest that Congress needs to pass a statute to regulate discrimination among males, or to regulate male conduct.

Unknown Speaker: Mr.--

--Well--

--Then you defend the fifth Circuit's rationale based on a nonstatutory analysis.

You would have us hold that if a homosexual supervisor trades favors with people of his own sex for advancement, that this is not a violation of the statute.

Mr. Reasoner: I would, Your Honor.

Unknown Speaker: Why is that?

Because if a Jew could discriminate against a Jew, an African American against an African American, an Italian against an Italian, all those things could happen.

Mr. Reasoner: Certainly, Your Honor.

Unknown Speaker: So why isn't it possible that a homosexual or nonhomosexual man, irrespective, could discriminate against another man on the basis of sex, and so could a woman?

Mr. Reasoner: Well, I think... you're using the word discriminate.

Unknown Speaker: Yes.

Well, if that's so, if those things are possible--

Mr. Reasoner: There's--

Unknown Speaker: --as they think they are, how could you have a circuit that has a rule that says they're not possible under the statute?

Mr. Reasoner: --I don't think it does, Your Honor.

I think what the Fifth--

Unknown Speaker: Well, if we think that's what they held, I guess we'd have to say that's wrong.

[Laughter]

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: Yes.

Mr. Reasoner--

--And it sure reads that way, so I think you have to come to grips with that and then help us--

Mr. Reasoner: Well--

Unknown Speaker: --decide what it is this statute really means.

Mr. Reasoner: --I--

Unknown Speaker: And in that context, do we consider at all the EEOC guideline on this?

Now, the guideline says that harassment on the basis of sex is a violation of title VII if it's physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

The guideline does not refer at all to discrimination, I notice.

Mr. Reasoner: --No, and the EEOC flatly argues, Your Honor, if you look at their brief they want to include it all.

They feel no obligation to prove discrimination.

But again, all the Fifth Circuit was addressing was sexual harassment, and I respectfully submit, as the circuits which struggled with this--

Unknown Speaker: I just read you the EEOC guideline--

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: --on sexual harassment, or harassment, however you pronounce it.

Mr. Reasoner: Yes.

Unknown Speaker: Now, does that... do we rely on that?

Are they entitled to some deference there--

Mr. Reasoner: I--

Unknown Speaker: --in how we interpret this statute?

Mr. Reasoner: --I think they're entitled to deference only insofar as the Court finds them consistent, and they're not entitled to a Chevron-type deference, as this Court has made clear, only insofar as you find them consistent and persuasive.

But I would respectfully submit, Your Honor, the question here--

Unknown Speaker: Excuse me.

They get no Chevron deference, you say?

Mr. Reasoner: --That is my understanding, Your Honor.

Unknown Speaker: Well, what's the basis for that understanding?

Mr. Reasoner: If I might... I don't recall your case.

Unknown Speaker: The General Electric case.

Mr. Reasoner: Thank you, Mr. Justice Stevens.

I will rely on Mr. Justice Stevens.

[Laughter]

Unknown Speaker: Are you--

--You could rely on the Chief Justice.

He wrote it.

[Laughter]

Mr. Reasoner, have you finished your answer to Justice O'Connor?

I have a question, but I... if you have more to say--

Mr. Reasoner: If I could say this one word, or sentence, the Fifth Circuit is saying that discrimination because of sex was not intended to comprehend relationships between the same sex.

It was not intended to comprehend all the whole spectrum of males' treatment of males.

Because of sex meant discrimination between men and women.

That's why they would exclude sexual harassment.

Unknown Speaker: --Then you could... is it in general?

If you have a male boss who takes good care of the women but treats the men miserably, that would not be... that would not be in title VII?

Mr. Reasoner: Justice Ginsburg, I think there is a clear distinction between policies regarding to pay, promotion, et cetera.

That's clear.

You can't discriminate.

The sex of the superior deciding that is immaterial.

It is only the area of sexual harassment, this interpersonal abuse--

Unknown Speaker: Well, why would it be different?

Let's say you had two rooms in the same, and in one there were women working, in the other, men, and when the women complain about sexual harassment, the boss attends to it, takes it seriously, and when the men complain about the grossest treatment, the kind we have here, the boss says, boys will be boys.

That would be okay?

That would not be within title VII?

Mr. Reasoner: --No, it would not be okay.

The conduct alleged here, for example, would violate five Louisiana criminal statutes, and subject all the participants to damages.

Unknown Speaker: But I'm talking only about title VII, so... but I've given you a situation where the employer responds to women's complaints of sexual harassment, says to the guys, you've got to be made of sterner stuff, so I'm not going to pay any attention.

That would not come within title VII?

Mr. Reasoner: No, Your Honor, I think not, in the sense if what is being complained about is male harassment of a male.

The... now, to the extent--

Unknown Speaker: The same boss treats women one way, he attends to their complaints, and he treats men a different way, says, I'm not going to listen to you.

I've no sympathy with you.

Mr. Reasoner: --Let me say, clearly, Justice Ginsburg, I think such a boss would be foolish, and would be inviting action under State--

Unknown Speaker: But you--

Mr. Reasoner: --But the question here is, did Congress in 1964, when it said discrimination because of sex intend to encompass not only discrimination between men and women based on sex, but the entire gambit of sexuality... and that is what the Government would argue for.

As Mr. Justice Scalia said, we would now be into sexuality, for example--

Unknown Speaker: --But our choice is not between nothing and everything, so... and your argument is for nothing.

Mr. Reasoner: --My... I do not believe, Your Honor, that if you cross this threshold, certainly you have no assistance from the petitioner or the Government in drawing a line, and if you look at how the circuits have tried to struggle with this, in Doe the Seventh Circuit said we will... in trying to say what because of sex means, they looked at sexual stereotyping, sexual orientation, sexuality in general.

They then attempted to retreat from that in Johnson v. Hondo shortly thereafter saying, well, we won't look at sexual content alone, but once you get into regulating male behavior with sexual content--

Unknown Speaker: Why isn't the Manhart test the answer to all this?

You say there are all sorts of problems, but why don't you just have a very simple rule?

If the plaintiff sustains the burden of proving that the victim would have been treated differently if he or she had been of the opposite sex, that proves discrimination.

Why isn't that a simple test that works?

Mr. Reasoner: --Because it's not simple, Your Honor, because how do you give content to it?

The Fourth, Sixth, and Eleventh--

Unknown Speaker: Well, you require the proof in the particular case and make the plaintiff prove his case.

Mr. Reasoner: --Well, what is--

Unknown Speaker: And if the jury finds here, well, we're pretty well convinced that this fellow would have done the same thing to women, the plaintiff loses.

Mr. Reasoner: --I would--

Unknown Speaker: But if the reasonable inference is he wouldn't have, the plaintiff wins.

Mr. Reasoner: --I would submit, Your Honor, that that would be the creation of a statute that was not intended by Congress.

Unknown Speaker: We'd just be following what we wrote in Manhart, you know, 15 or 20 years ago.

Mr. Reasoner: I think not, Your Honor.

I mean, there in Manhart you're talking about treating men and women differently--

Unknown Speaker: Right.

Mr. Reasoner: --on levels of policy, pension plans, pregnancy leave, et cetera.

Now, when we're talking about interpersonal relationships and we're going to attach them to discrimination in some way, what's the content we give to them?

What does because of sex mean?

The only thing the Fourth, Sixth, and Eleventh Circuit could figure out that because of sex meant was that we inquire into the sexual orientation of the predator.

Unknown Speaker: But that must be wrong, isn't it?

I mean, isn't it the... that they're trying to get at the problem of whether the employer has imposed a term or condition, a significant term or condition because of the person's gender, and in those instances where, for example, people create a workplace where there is either quid pro quo or some frightful situation where the women have to suffer because of their gender, they have a term or condition that the others don't, and the same could happen to a man, couldn't it?

I grant you it's hard to work out in the... in some individual cases.

In many it's not hard to work out.

But how does that differentiate this from any other area of law, antitrust, or, you know, thinking of difficult ones, and how could you escape that in this statute?

Mr. Reasoner: I... Your Honor, I think that you would go where Congress did not intend.

I think when they said discrimination because of sex, it's very clear that they were trying to level the playing field between men and women, and that there's no evidence, not the slightest evidence that they intended to federalize the regulation between men and men.

Unknown Speaker: Mr. Reasoner--

--Well, Mr. Reasoner... go ahead.

Let me see if I understand what your position is.

Suppose that there had been hazing of male employees without any sexual allusions or connotations, and you have a workplace in which only male employees are hazed, they are made to feel insignificant, or, you know, horseplay, whatever, but no sexual connotations, and this is never done to women employees, what is your position on whether that would violate the legislation?

Mr. Reasoner: I would say it would not, Your Honor.

Unknown Speaker: It would not.

Well then, I don't understand your position.

[Laughter]

You told me that you thought the male-on-male was no good, only as it relates to sexual harassment, and you said that's what the position of the court of appeals here was.

I give you a case that doesn't involve any sexual harassment--

Mr. Reasoner: I apologize, Mr. Scalia.

I did not realize you... that was the case you were giving me.

Unknown Speaker: --Oh.

Mr. Reasoner: I think--

Unknown Speaker: Well, that was the case I gave you.

Mr. Reasoner: --Well--

Unknown Speaker: So your answer is what I thought it should be, right, that that would be a violation.

[Laughter]

Mr. Reasoner: --Yes.

I clearly... if a company set a discriminatory policy, that would be a different... discriminating between men and women, that would clearly be reached by the statute.

Unknown Speaker: Okay.

So if you haze them with no sexual allusions and you don't haze women, then it is a violation of title VII, right?

Mr. Reasoner: If the company sets a discriminatory policy.

Unknown Speaker: Yes.

Then... now suppose you haze them with sexual allusions, but you don't haze women.

Suddenly it does not become a violation of title VII?

Mr. Reasoner: I think what a court must then ask itself, Your Honor, is what does because of sex mean, and I submit to you... Congress has not passed, as you know, the Employment Nondiscrimination Act, which I think tries to deal in a way that would be workable and not intrusive and violative of privacy, with harassment based on sexuality or orientation.

Unknown Speaker: But discriminatory hazing is discriminatory hazing, whether the hazing has sexual allusions mixed into it or not.

Mr. Reasoner: But that--

Unknown Speaker: I would think your answer would have to be, yes, if it's discriminatory hazing, it's bad.

Mr. Reasoner: --If the defendant is going to be allowed to raise the issue as to whether it is because of sex, Mr. Justice Scalia, then I think you are opening it up into inquiry as to the sexual orientation of all of the parties involved.

Unknown Speaker: Is that any part of this case?

As far as I know, it isn't, and--

Mr. Reasoner: The... I... Justice Ginsburg, I would be inclined to say not, but you... I think I just heard the petitioner say that they would argue that there was quid pro quo possibility involved.

They will, and if you're going to argue quid pro quo, of course you have to--

Unknown Speaker: --But you see, we don't know that at this stage.

The case has been thrown out because it says no matter what, if it's male-male, it's not covered.

Mr. Reasoner: --You know that the petitioner is trying to assert that over these facts, and, of course, this is a fee-shifting statute.

You would make the Federal courts the forum of choice for all litigation involving abusive male-on-male--

Unknown Speaker: Mr.--

--If we were to decide, Mr. Reasoner, that in some cases discrimination by a man against a man violates the statute, it seems to me we would have to reverse the Fifth Circuit here, because they said that just can't be, and very likely we don't have to work out the rules that would apply to whatever factual development comes in this case, but I don't see how we can possibly sustain the ruling of the Fifth Circuit that it never could be.

Mr. Reasoner: --Well, Your Honor, I think that when one looks at the struggles of the Seventh Circuit, the Fourth, the Sixth, and the Eleventh, to work out a rationale to make this statute... and I submit one reason it is so difficult to work out is because this statute was never designed to regulate conduct among the same sex, then I think that the... that it's fair to say that the courts desperately need guidance.

Unknown Speaker: How about a woman supervisor discriminating against a woman?

Would that... is that immune from the statute?

Mr. Reasoner: If she discriminates in an employment decision, a promotion decision, certainly not.

You know, discrimination at the level of company policy or supervision is certainly not immune.

If she discriminates... if she propositions her, or makes sexual overtures to her, then yes, we would say that that is not implicated by the statute.

Unknown Speaker: Well, and is the reason... is the reason it is not implicated simply because it was not the intent of Congress to implicate it?

Is that your argument?

Mr. Reasoner: Yes, Your Honor.

Unknown Speaker: In other words, it's the... the text covers it.

Mr. Reasoner: I think not, Your Honor.

Unknown Speaker: But that was not the problem that Congress was addressing.

Is that your argument?

Mr. Reasoner: I think that the text does not cover it.

I think that--

Unknown Speaker: Then why does the text cover white against white discrimination?

The language is equally undifferentiated.

Mr. Reasoner: --Well, the statute would cover reverse discrimination.

It would... I mean, in all its aspects, but--

Unknown Speaker: Well then, why doesn't the statute cover reverse sexual discrimination when it happens to take a sexually explicit form?

Mr. Reasoner: --I--

Unknown Speaker: I mean, so far as the text of the statute is concerned, I don't see how you can draw a distinction.

Mr. Reasoner: --Well, I would submit that you're having to change the meaning.

If you say discrimination because of sex, speaking of gender, you're talking about discrimination because somebody's a male or because somebody's a female.

That's exactly what you had in Meritor and Harris.

You went no further than that.

Unknown Speaker: Sure, but at the time the statute was passed, exactly the same argument could have been made about discrimination because of race.

You're talking about somebody of race A who treats race B in a disadvantageous way, and exactly that same argument, if it were sound, would have led to the conclusion that you can't have discrimination by one white against another white.

Mr. Reasoner: No, Your Honor, I would suggest that if you look at because of sex, when you apply it to... a female to a female, or a male to a male, you have changed the meaning.

You are now making it because of this--

Unknown Speaker: Why have you changed it when--

Mr. Reasoner: --Because--

Unknown Speaker: --Why have you not changed it when you say because of race?

Mr. Reasoner: --I think, Your Honor, that we're... that sexual harassment is a complex concept that implicates many things that because of race does not.

Unknown Speaker: Because it--

--Well, are you... may I... are you saying that it's simply the nature of the harassment rather than the nature of the discrimination against a member of one sex or the other which is the crucial thing, so that it comes down to a point almost of evidence?

Mr. Reasoner: No.

Unknown Speaker: No.

Mr. Reasoner: I would say that on the harassment that male-on-male, it's not because of sex.

It may be because of orientation, it may be because of sexuality, it may be because he doesn't like him--

Unknown Speaker: Why couldn't it be because you're not the right kind of man, just as with respect to women, and wasn't there, at least in one case, a statement to the effect of what title VII is aimed at is getting rid of stereotypical notions about the way men are or the way women are, so that if you... we know that an employer can't say, as in Martin Marietta, how could I discriminate against women, most of the people I hire are women, but I won't take the ones who have children.

So if that's what title VII is about, you're not the right kind of male, or you're not the right kind of female, why wouldn't it fit?

Mr. Reasoner: --Well, I think Your Honor illustrates the difficulty.

Martin Marietta is easy.

Of course that's discrimination.

But are we now going to say that, on male-on-male relationships, that abuse, because we don't like their appearance... I mean, does it all go back to sex and harassment, and I submit to you that's what the Government would have you do.

They say to you flatly it's immaterial what the motives were, and the test is tautological.

You say, because of sex.

Man harasses a man, of course it's because of sex.

What else?

He is a sex.

Unknown Speaker: But why do we have to go as far as you go?

As... I understand your position.

You're not saying that male-on-male is bad.

There can be discrimination male-on-male.

You're just saying that sexual harassment male-on-male does not automatically constitute discrimination under the act, as male-on-female or female-on-male would.

Is that right?

Does not automatically.

Mr. Reasoner: I would certainly agree that it does not automatically--

Unknown Speaker: Okay.

Mr. Reasoner: --Your Honor.

Unknown Speaker: But just because it does not automatically, I don't know why that leads to the conclusion that it does not ever, and why was a summary judgment proper here?

Why shouldn't it have been left to the jury to say, well, regardless of whether there were sexual overtones or not, that doesn't decide the case, but nonetheless, if you think that this individual male was being discriminated against because he was a man and not for some other reason, you can find for the plaintiff?

Mr. Reasoner: It leads to that conclusion, Your Honor, if you conclude that, looking at the language of title VII in context, that Congress intended to limit it to discrimination between men and women, that it did not intend to reach into same-sex harassment, and--

Unknown Speaker: Wait, you've acknowledged that it didn't intend to limit it between men and women.

You've acknowledged that if you... that if a woman discriminates against another woman because of her womanness, say, I just want a male workforce, I'm not going to promote any women, you've acknowledged that that's a violation.

Mr. Reasoner: --Certainly.

Certainly.

Unknown Speaker: It's only in the sexual harassment area--

Mr. Reasoner: Exactly.

Unknown Speaker: --you think that it does not automatically constitute a violation, but why do you have to say it does not ever constitute a violation?

Mr. Reasoner: I have to say that, Your Honor, because--

Unknown Speaker: To win the case.

Okay.

Mr. Reasoner: --the Fifth Circuit said that.

[Laughter]

But... but let me say, I do believe that is correct.

I think it implicates serious concerns of federalism to now say that this statute will be expanded to uncover this entire spectrum of relationships, and to do it with no... you have no standard.

Once you've cut loose from the moorings of the two sexes, because of sex, are we then going to get into homosexuality--

Unknown Speaker: Of course, there's another way of looking at it.

Instead of saying it's expanding the statute, say the statute's always covered discrimination, and you're asking to cut out of the general field of discrimination this one area.

One can look at it that way, too.

Mr. Reasoner: --One could, Your Honor, but I submit, and even the Government admits this at page 10 of their brief, that sexual harassment was an expansion of the statute based on the intent of the statute, and I think necessary to achieve the statutory purposes, and the question before the Court now is, does sexual harassment need to be applied in the context of single-sex relationships in order to achieve the statutory purposes, and--

Unknown Speaker: But it's not necessary to look at it as an expansion of the statute.

It seems to me that it's sufficient to look at the sexual harassment law as being in effect a kind of evidentiary gloss on the statute, that when this kind of conduct occurs, as Thoreau put it, you know, there's a trout in the milk.

We know what that means, and I don't see why we don't also draw an inference when the harassment is between the same sexes.

It may in some instances be more difficult to draw it, but as Justice Scalia says, what is the theoretical basis for saying you can never draw that kind of an inference?

Mr. Reasoner: --Well, you know, first I would say that there... the statute is solid.

It does not create such an offense.

Second, we have a history in the literature.

We know about the disparate treatment of women, et cetera.

We know that there was something for Congress to remedy there.

Unknown Speaker: That's why we can draw the inference so easily, right.

Mr. Reasoner: With regard to women, correct.

Unknown Speaker: As a practical, common sense thing, right.

Mr. Reasoner: But now, on same sex, we have the whole spectrum, from hazing, bullying... you know, I mean, would we argue that generations of fraternity boys are liable under--

Unknown Speaker: Right.

Mr. Reasoner: --title VI, or--

Unknown Speaker: More difficult to draw.

I can understand your point there, but how do you take the final leap, you can't draw it?

Mr. Reasoner: --But I would say, Your Honor, that because of sex becomes contentless in this statute if you're going to say every time there's sexual content, male-on-male abuse, it's sexual harassment.

Unknown Speaker: Thank you, Mr. Reasoner.

Mr. Reasoner: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Canaday, you have 2 minutes left.

Rebuttal of Nicholas Canaday, III

Mr. Canaday: The Fifth Circuit held that same-sex harassment is not cognizable under title VII.

That is the holding of the court below.

Again, we re-urge the Court to reverse that holding.

The language of title VII is broad enough to... that a decision of the court below is inconsistent with this Court's interpretations of the statute--

Unknown Speaker: The statute doesn't make unlawful same-sex harassment, or any harassment.

It makes unlawful discrimination on the basis of sex, right?

Mr. Canaday: --Yes, Your Honor, and this Court--

Unknown Speaker: So you don't want us to say that same-sex harassment is actionable.

It isn't necessarily actionable.

It's actionable if it constitutes--

Mr. Canaday: --Sexual discrimination.

Unknown Speaker: --If and only if it constitutes sexual discrimination.

Mr. Canaday: Yes, sir, as set forth in the Meritor case.

Unknown Speaker: Which you say it always does.

Mr. Canaday: I--

Unknown Speaker: And your opponent says it never does.

Mr. Canaday: --No, sir.

I said that the--

[Laughter]

Our position is that the sexual nature of the conduct does allow for the inference which has been recognized in the cross-gender cases of the fact that it is because of sex, but our position is that it is inherently a question of fact which needs to move to the trier of fact.

It is not a... we are not asking for a per se rule.

We're asking for a rule that recognizes the factual nature of the inquiry, and with that, we thank the Court for its attention in our case.

Chief Justice Rehnquist: Thank you, Mr. Canaday.

The case is submitted.