delines? Secondly, do the new guidelines set forth in Oncale v. Sundowner 118 S.Ct. 998, place a heavier burden of proof on the victim for all sexual harassment claims than before? Finally, is there a remedy available to victims of sexual harassment who fall outside the guidelines or is there simply no action to be brought? To answer these questions as well as possible you must look beyond the opinion of the court. None of the opinions specifies whether or not the discrimination has to be against a group, or if an individual being discriminated against because of sex, has a claim under Title VII and the EEOC guidelines. Looking at the statute referred to by Scalia, it states that it is, "unlawfulto discriminate against any individual." This leads one to believe that same sex harassment can be either an individual or a group injury. As for the heavier burden of proof being placed upon the victim it seems as if heterosexuals bringing a same sex harassment case must prove the fifth element of causation in the guidelines when it would be unnecessary for a member of the opposite sex to prove this. It is placing the responsibility on the plaintiff to show that the harassment was "because of sex." Many courts in attempts to fulfill the fifth element have relied on the "but for" approach. "An employee is harassed or otherwise discriminated against because of his or her sex, 'but for' the employees sex, he or she would not have been the victim of such discrimination." The court is trying to stay away from inferring that one must prove sexual desire while preventing cases that are based merely on sexual connotations in conversations. The last question, what happens if the harasser falls outside of the boundaries laid out in the Oncale case? "Oncale may have expanded the coverage but restricted the liability under the law." By placing such guidelines on sexual harassment the courts have implied that employers are not responsib...
