In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court decided that same-sex sexual harassment was actionable as a violation of the Civil Rights Act of 1964. Under Title VII, an employer cannot take an adverse employment action "because of sex." In Oncale, the harassment included physical assaults of a sexual nature, including threatened rape. Importantly, the text of Title VII does not include "sexual orientation" or "gender identity" in its list of protected classes that includes race, color, religion, and national origin, in addittion to sex.
As important as the Oncale ruling is for plaintiffs subjected to same-sex sexual harassment, it is also problematic. For instance, the U.S. Supreme Court did not include discrimination based on sexual orientation and gender identity as discrimination because of sex. In addition, many courts have interpreted the Court's opinion to limit the theories by which a plaintiff could prove same-sex discrimination to those specifically enumerated by the Court, thereby precluding other theories, such as gender role policing. The feminist judgment, by Professor Ann McGinley writing as Justice McGinley, seeks to correct these and other limitations of the original opinion.