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Employee Rights and Employment Policy Journal
SAME-SEX SEXUAL HARASSMENT: CAN IT BE SEX-RELATED FOR PURPOSES OF TITLE VII?
BY RAMONA L. PAETZOLD, J. D.*
[P.25]Bill is attracted to Chris a coworker he sees a lot of at work. He spends a lot of time hanging around Chris' desk, asking Chris to go out with him, and also sends letters to Chris detailing the nature of his ro-mantic and sexual interest. Because Chris does not welcome Bill's at-tentions, and because they are pervasive, Bill is viewed as engaging in hostile environment sexual harassment.
Or is he? What if Chris is male? And if Chris is male, does it matter whether the pervasive, unwelcome behavior is viewed as stem-ming from a sexual attraction, or whether it is perceived as flowing from abuse of power or authority in the workplace? This article ex-plores the complex issue of so-called "same-sex" harassment.
The phenomenon we identify as sexual harassment (at least in United States culture) is deeply rooted in feminist thinking. Notions that sexual harassment in the workplace is a way of creating or main-taining oppression of women, 1 that women cannot be viewed as work-ers in the same way that men are when they are viewed as sexual beings first, 2 that the consequences created by unwanted sexual atten-tion, actions, or other sex-based behaviors can be harmful to women even when noneconomic 3 -- all of these rely on feminist theory and argument. This is not to say that the legal definition is feminist; for example, the fact that the law considers evidence of a woman's dress [P.26] or language as probative on the issue of unwelcomeness 4 suggests that women are seducers of men, who cannot control their urges, 5 and con-tradicts to the feminist notion that women are not to blame when they are victimized. 6 Nonetheless, the existence of legal protections against sexual harassment stems largely from early feminist writings, such as early work by Catharine A. MacKinnon. 7
Title VII's prohibition against sexual harassment is not explicit; nowhere in the statute is the phrase "sexual harassment" used. Yet, discrimination on the basis of sex has come to encompass forms of harassment that are determined to be inappropriately sex-based. 8 Ini-tially, based on the feminist roots and the prevalence of cases, it was relatively easy to describe the kinds of harassment that fell within the penumbra of sex discrimination: the harassment was of a female, and by a male. 9 And, because courts have consistently interpreted pro-tected status under Title VII as including all the categories that are socially recognized as constituting that status, 10 males, too, could bring actionable claims for sexual harassment instigated by females. 11 To-day, "same-sex" harassment cases are forcing courts to confront sex discrimination anew: When can harassment of a person by another person of the same sex constitute actionable sexual harassment under Title VII? The recent increase in this type of claim 12 fosters further consideration of the legal definition of sexual harassment and its criti-cal connection to sex discrimination. Judicial treatment of these claims reveals the problematic ways in which sexual orientation and [P.27] sex are differentiated, 13 and highlights and further constructs stereo-types, expectations, and general beliefs about how and why human beings interact with each other in particular ways. The very notion of sex itself -- the language of Title VII14 -- must be reexamined to deter-mine whether same-sex harassment falls within the Title VII protec-tions against sex discrimination.
This article explicates the reasoning in recent federal court deci-sions regarding both actionability and outcomes of same-sex harass-ment cases, identifying the points of difference that account for the split among the federal courts. It presents a theoretical argument for considering same-sex harassment claims as being violations of Title VII when the conduct is of a sexual nature, 15 regardless of the sexual orientation of the perpetrator( s) and plaintiff( s). Additionally, I ar-gue that evidentiary issues regarding causation under Title VII for conduct of a sexual nature should be resolved in same-sex cases as they are resolved in male-female harassment cases: 16 The same pre-sumptions or inferences should apply. 17 [P.28]
A BRIEF REVIEW OF THE LAW OF SEXUAL HARASSMENT
The actionability of sexual harassment under Title VII has been considered at least since the 1970's. 18 Two major forms of sexual har-assment are recognized under Title VII, quid pro quo and hostile envi-ronment, both of which have now begun to occur in same-sex harassment claims. 19 Under the quid pro quo theory, the plaintiff must have suffered an economic or tangible loss by engaging or not engaging in sexual activities with (the agent of) the employer. A pro-totype case might involve a plaintiff who has been promised a promo-tion if she will have sexual relations with her supervisor, and when she refuses, loses the promotion. 20 These cases have been viewed as dis-parate treatment cases under Title VII, 21 because they involve explicit differential treatment of the plaintiff due to sex, resulting in a direct violation of Title VII's mandate that employers not discriminate with respect to "compensation, terms, conditions, or privileges" of employ-ment. 22 The Supreme Court in Meritor Savings Bank v. Vinson 23 rec-ognized the quid pro quo form of sexual harassment as a violation of Title VII. 24
The hostile environment theory of sexual harassment has been held by the Supreme Court to violate Title VII. In Meritor Savings Bank, the Court held that sexual harassment can be actionable even when there are no economic or tangible losses, when it is "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employ-ment and create an abusive working environment, '" 25 and adopted "unwelcomeness" as the gravamen for determining whether behavior [P.29] can be considered harassment. 26 The federal courts of appeal have fleshed out the elements of hostile environment sexual harassment claims, typically articulating them as requiring the plaintiff to prove that she or he has been subjected to conduct (1) that is unwelcome, (2) that has occurred because of the plaintiff's sex, (3) that is suffi-ciently severe or pervasive to create a hostile environment, and (4) that provides a basis for holding the employer liable. 27
Both the unwelcomeness and the severity/ pervasiveness elements have subjective and objective interpretations or prongs attached to them, so that the plaintiff must prove not only that she finds the be-havior unwelcome, making the environment hostile or abusive, but that a reasonable person in the plaintiff's position would similarly con-sider the behavior of that nature. 28 In Harris v. Forklift Systems, Inc., 29 the Supreme Court held that psychological harm was not re-quired for the plaintiff to establish that the conduct was severe or per-vasive; instead psychological harm is but one of many factors that can be used to determine that the plaintiff's work environment has be-come insulting, intimidating, or hostile. 30 Thus, read together, Meritor Savings Bank and Harris indicate that persons can suffer discrimina-tory harm from working in an environment that includes insult, threat, sexual innuendo or coercion, or other forms of hostility relating to sex, even though neither economic nor psychological harm can be dis-cerned. It is the existence of the hostile environment itself that vio-lates Title VII.
JUDICIAL TREATMENT OF SAME-SEX HARASSMENT CASES
In 1997, the U. S. Supreme Court granted certiorari review to the Fifth Circuit's decision in Oncale v. Sundowner Offshore Serv., Inc. 31
Six federal circuits have explicitly considered same-sex harass-ment cases (Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh), 32 and only one (Fifth Circuit) has ruled that these claims can never be [P.25] actionable under Title VII. The leading Fifth Circuit case is Garcia v. Elf Atochem North Am., 33 in which a Fifth Circuit panel, citing an unpublished opinion in Giddens v. Shell Oil Co., 34 noted that a male employee's claim for sexual harassment against his male supervisor is not actionable under Title VII, even if the harassment is sexual in na-ture, because Title VII "addresses gender discrimination." 35 Thus, the conduct that had occurred in Garcia -- Garcia said that his supervisor had grabbed his crotch and made sexual motions -- was not seen as sex-based discrimination. 36 More recently, in Oncale, a different panel of the Fifth Circuit has read Garcia as binding precedent and has ruled that Title VII does not recognize same-sex harassment claims. 37 Although the Fifth Circuit's position on same-sex harass-ment seems clear, there is little explanation of the rationale why Title VII cannot be viewed as encompassing such claims; it can only be in-ferred that sexual horseplay or advances between persons of the same sex are not viewed in the Fifth Circuit as motivated or caused by sex.
The Fourth Circuit has confronted the same-sex harassment issue in two cases in which the Supreme Court denied certiorari, McWil-liams v. Fairfax County Bd. of Supervisors 38 and Hopkins v. Baltimore Gas and Elec. Co., 39 and in one subsequent case, Wrightson v. Pizza Hut of Am., Inc. 40 In McWilliams, McWilliams complained that his co-workers (the "lube boys") teased him about his sex life, exposed themselves to him, put a condom in his food, and physically assaulted him. 41 This behavior all occurred in the context of a work [P.31] environ-ment that was all-male and heavily focused on sex. 42 The district court had dismissed the Title VII hostile environment sexual harass-ment claim on the basis that the employer did not have actual or con-structive notice of the harassment. 43 The Fourth Circuit upheld the grant of summary judgment to the defendant, but on the grounds that a same-sex harassment claim is not actionable under Title VII when both the alleged harassers and victims are heterosexuals of the same sex. 44
The Fourth Circuit based its decision on its interpretation of the causation requirement of Title VII, offering that behavior promul-gated by heterosexual males against heterosexual males could not be viewed as occurring "because of sex." 45 Instead, the court believed that the cause of the harassment might be some characteristic of the victim (known or perceived), such as his prudery or vulnerability to the kind of conduct alleged in the case. 46 Or, the court noted, it might be because of the perversion or other negative characteristics of the harassers. 47 The court simply did not read the causation requirements of Title VII to be sufficiently broad to reach this type of harassment, although it was of a sexual nature. 48 [P.32]
Later, in Hopkins v. Baltimore Gas and Elec. Co., the Fourth Cir-cuit held that under the facts of the case, not only was same-sex har-assment actionable under Title VII, but that such a holding was required by the statutory language. 49 In Hopkins, Hopkins, a male, complained that his male supervisor had made a number of sexually suggestive remarks to him, looked at him in ways that made him un-comfortable, asked him questions with sexual overtones, once pointed a gun at him, and made physical contact with him. The court first observed that it is only the sex of the plaintiff, and not the alleged harasser, that determines whether Title VII is implicated. 50 Next, it is up to the plaintiff to establish the causal link that his or her sex played in the harassment; the court noted that "[ t] he principal way in which this burden may be met is with proof that the harasser acted out of sexual attraction to the employee." 51 Thus, evidence of the alleged harasser's homosexuality would be probative on the issue of whether the harassment was directed at the plaintiff because of sex. The court noted further, however, that "merely suggestive" conduct would be insufficient proof of homosexuality for this purpose. 52 Although find-ing same-sex harassment actionable, the court upheld the grant of summary judgment to the defendant on other grounds. 53
Most recently, in Wrightson v. Pizza Hut of Am., Inc., 54 the Fourth Circuit reversed a district court holding that same-sex harass-ment was not actionable under Title VII, noting that Wrightson's alle-gation that he was discriminated against because of his sex was "alone sufficient" to withstand a motion to dismiss. 55 Further, his allegation was found to be more than adequate when coupled with allegations that five co-workers and his supervisor made sexual advances toward him and pressured him to engage in homosexual sexual relations, and that other males but no females were so targeted for similar harass-ment. The Court noted that Title VII does not limit the sex of the target or the perpetrator of sexual harassment; it saw no logical con-nection between Title VII's requirement that the discrimination be be- [P.33] cause of the employee's sex and a requirement that the harasser and target be of different sexes. 56
Similarly, the Eleventh Circuit held in Fredette v. BVP Manage-ment Ass'n, 57 that same-sex harassment is actionable when a homo-sexual male supervisor propositions a male subordinate for sexual favors, noting that its holding did not reach the question of actionabil-ity when the supervisor is heterosexual. 58
In Yeary v. Goodwill Industries-Knoxville, Inc., 59 the Sixth Circuit found same-sex harassment to be actionable in a case involving sexual propositions and touching, and obscene comments directed at one male by a male co-worker. The Sixth Circuit held that the "because of sex" causal nexus is met when the unwelcome sexual conduct is moti-vated by sexual attraction, without requiring an explicit showing that the harasser is homosexual. 60 Thus, the Sixth Circuit standard is more generous to plaintiffs than that of the Fourth, and perhaps the Eleventh.
The Eighth Circuit has adopted a more expansive interpretation of same-sex harassment actionability under Title VII in Quick v. Don-aldson Co. 61 Quick alleged that twelve male coworkers intentionally grabbed and squeezed his testicles (" bagging") over a two-year pe-riod. No women were "bagged," and the one woman who was asked to "bag" a male had declined. In addition, Quick noted two specific assaults -- one involving a bruising of his testicle as a result of squeez-ing, the other involving a punch in his neck by a coworker. 62 He al-leged that he was also the victim of repeated verbal harassment, involving a variety of epithets suggesting that he was homosexual. 63 Reversing a grant of summary judgment for the defendant, the Eighth Circuit held that "[ e] vidence that members of one sex were the pri-mary targets of the harassment is sufficient to show that the conduct [P.34] was gender based," 64 at least for purposes of summary judgment. In doing so, the Court adopted Justice Ginsburg's view in Harris as cen-tral to the "because of sex" inquiry: Were members of one sex "ex-posed to disadvantageous terms or conditions of employment to which members of the other sex" were not exposed? 65
Thus, the Eighth Circuit appears to impose no requirement re-garding the sexual orientation of either the harasser or the target of the harassment in finding same-sex sexual harassment actionable under Title VII. Additionally, the Eighth Circuit has reiterated that sexual harassment need not be explicitly sexual in nature to be dis-criminatory, but may occur in a variety of forms, including acts of physical aggression or violence, and incidents of verbal abuse. 66
Finally, the Seventh Circuit, in Doe v. City of Belleville, 67 has re-cently adopted the broadest view of the actionability of same-sex har-assment claims. Doe was a sixteen-year-old male who had been dubbed "fag" and "queer" by his male coworkers and who was sub-jected to daily taunts about his sexuality. 68 Although other coworkers were duplicitous, one coworker, Dawes, made constant remarks to Doe about his maleness as well as suggesting that he would engage in homosexual sex acts with Doe. 69 Dawes' verbal harassment culminated in an incident in which Dawes grabbed Doe's testicles and announced to their coworkers that Doe was a "guy." 70 Doe gave two weeks notice and left the city's employ thereafter. 71 The district court had granted summary judgment for the City, observing that Doe worked in an all-male environment, was heterosexual, and that his ha-rassers were also heterosexual. The offensiveness of the conduct, ac-cording to the district court, lay in its implication that Doe was homosexual, and the court did not view such conduct as giving rise to a claim as actionable under Title VII. 72
The Seventh Circuit reversed, holding that same-sex harassment is actionable under Title VII even when it occurs between [P.35]heterosexu- als. 73 Further, the court suggested that explicit, sexual conduct alone is sufficient to establish sex-based causation for purposes of Title VII. 74 In beginning this analysis, the court noted that causation is gen-erally assumed in sexual harassment cases involving men and women, at least when the harassment occurs in explicitly sexual ways, and therefore saw irony in requiring a male harassed by another male to make a stronger showing under Title VII, a statute that expressly for-bids sex discrimination. 75 Had Doe been a woman, the court said, there would have been no "agonizing" over whether he had exper-ienced sexual harassment within the meaning of Title VII. 76 Although the court believed that sexually explicit conduct speaks for itself as being based on sex, it did not hold that the causal connection was automatic when sexual conduct was involved: It noted that in the in-stant case, there was more evidence that the harassment was linked to Doe's gender. 77
In making this determination, the court observed that Doe was not viewed by his coworkers as appropriately masculine, in part be-cause he wore an earring. 78 Using Price Waterhouse v. Hopkins 79 as precedent, the Seventh Circuit held that the use of such gender stereo-types posed the needed causal link between Doe's sex and his harass-ment. 80 The court explicitly ruled out a showing of the sexual orientation of the harasser as essential to the causation requirement under Title VII, noting that such a requirement appears to be based on the assumption that sexual harassment is a "matter of sexual desire run amok." 81 The court saw parallels with this view and the early views of rape, noting that a rapist could not use as a defense to having raped a woman that he was gay, nor as a defense to having raped a man that he was heterosexual. 82 Because different-sex sexual harass-ment cases have never depended on showings of heterosexuality, but appear to have presumed it, the Seventh Circuit saw no reason to re-quire showings of homosexuality in same-sex harassment cases.
Thus, the Seventh Circuit position is critical of the Fourth Circuit position and appears to be more willing to consider same-sex [P.36] harass- ment cases as violations of Title VII than even the Eighth Circuit. The extent to which this enlightened view will have an impact on subse-quent cases arising in the Seventh Circuit remains to be seen; district court judges within the Seventh Circuit have had problems in viewing same-sex harassment cases as evidencing the causal link to sex re-quired by Title VII. 83
THE FEDERAL DISTRICT COURTS
The split in treatment of same-sex cases is further developed in the federal district courts. Most of the district courts that have heard same-sex harassment claims have considered them to be actionable under Title VII, 84 but a few have not. 85 And, even when same-sex claims have been found to be actionable under Title VII, evidentiary problems regarding causation have sometimes arisen. 86 The diversity of views of the federal district courts are discussed in this section.
In Prescott v. Independent Life & Accident Ins. Co., 87 a case in-volving allegations of quid pro quo sexual harassment, the male plain-tiff complained of unwanted sexual touchings, implied threats to fire him for noncompliance, and promises to help him advance with the company were he to comply with the male supervisor's demands. The court found this behavior actionable without regard to the sex of the harasser, because Title VII requires only that "a person receives dis-criminatory treatment from a company or supervisor because of [his or her] sex." 88 And, in the instant case the causation requirement was met because the "but for" test for causation was satisfied: There were no allegations that the supervisor had propositioned or harassed [P.37]fe- male workers. 89 Thus, Prescott was in accord with an earlier quid pro quo harassment case, Wright v. Methodist Youth Serv., Inc., 90 in which Wright's Title VII claim was allowed to go forward against his em-ployer on the basis that he was terminated for refusing demands for sex made by his male supervisor. An Illinois district court applied the "but for" test and indicated that Wright was allegedly subjected to demands that would not have been made of his female co-workers. 91
Similarly, for hostile environment sexual harassment claims in-volving allegations of a same-sex harasser, courts go to great lengths to make sure that the sexual harassment is related to sex, and not to sexual orientation. The usual link is through explicit use of the "but for" causation test. 92 For example, in Peric v. Board of Trustees of the Univ. of Ill., 93 the court denied a motion to dismiss by the defendant because the plaintiff alleged that he was harassed by a male superior who had made sexual advances toward him. 94 The superior had de-manded that Peric engage in homosexual sex acts with him, which the court observed could only have been demanded from a man. 95
Another example is presented by Sardinia v. Dellwood Foods, Inc., 96 in which Richard Sardinia alleged that his supervisors would grab his genitals or buttocks, call him "babe" or "faggot," and make other comments to him of a sexual nature, 97 all in front of his co-workers and other supervisors. In addition, he was threatened repeat-edly with the loss of his job. Sardinia alleged that the harassment was so severe that he had been hospitalized twice, once for depression and anxiety, and later for paralysis stemming from anxiety, and that although other males were similarly harassed, females apparently were not. 98 [P.38]
The district court found Sardinia's same-sex harassment claim to be actionable under Title VII, noting that cases holding otherwise suf-fer from a "hollow core." 99 Noting that nothing in Title VII itself lim-its its protection to "heterosexual harassment," 100 the court reviewed language in Meritor Savings Bank and Harris to strengthen its claim that hostile environments can exist whenever persons of one sex are harassed. As additional support the district court endorsed the view of other courts that it would be untenable to permit reverse discrimi-nation cases under Title VII while denying same-sex harassment cases. 101 Additionally, the court stated that men of any sexual orien-tation could show harassment in violation of Title VII as long as they could demonstrate that the harassment occurred because of their sex. 102 Thus, Sardinia was allowed to go to trial on his same-sex har-assment claim.
The EEOC position on same-sex harassment has also provided justification for recognizing such claims under Title VII. For example, in Raney v. District of Columbia, 103 the court noted that the EEOC had unequivocally found that Title VII embraced same-sex harass-ment. According to the EEOC Compliance Manual:
The court therefore held that where a supervisor singles out one sex for harassment, Title VII's protections are invoked. 105
The few same-sex harassment cases involving women plaintiffs re-veal similar reasoning for holding same-sex harassment claims action-able under Title VII. For example, in McCoy v. Johnson Controls World Services, Inc., 106 a white female plaintiff claimed that two black female employees both sexually and racially harassed her by rubbing [P.39] her breasts, rubbing her between her legs, and making derogatory re-marks that labeled her a "white bitch." 107 The court used a "but for" test for causation, noting that since there was no evidence that males experienced the same treatment, the harassment had occurred be-cause of the plaintiff's sex. 108 Similarly, in Nogueras v. University of Puerto Rico, 109 where the plaintiff alleged that her female supervisor and another woman had touched her, invited her to engage in sex, and made sexual remarks about her clothes and appearance, the court held that she had stated a claim under Title VII. The court noted that the sex of the defendant is irrelevant under Title VII, and Nogueras' allegations permitted an inference that her sex was the basis for the harassment. 110
Although only a few district courts have found same-sex harass-ment not to be actionable under Title VII, the ones that have so ruled tend to reside within the Seventh Circuit. 111 This is particularly inter-esting because in an earlier Seventh Circuit opinion, Baskerville v. Culligan Int'l Co., 112 the Seventh Circuit in dicta suggested that same-sex harassment would be actionable under Title VII. Baskerville was a woman who alleged harassment by her male supervisor, but in his opinion Judge Posner wrote that
Judge Posner left the door open for same-sex harassment cases to be brought successfully under Title VII, but prior to Doe v. City of Belleville, 114 not all district courts within the Seventh Circuit agreed. For example, in Schoiber v. Emro Marketing Co., 115 Schoiber claimed that he was fondled and kissed by his male supervisor at the Speedway [P.40] gas station, and that the parent company, Emro Marketing, had ig-nored his complaints about his supervisor's actions. Judge Norgle granted summary judgment for the defendant, noting that Title VII was intended by Congress to remedy inequitable treatment of women in the workplace. 116 In another case, Torres v. National Precision Blanking, 117 Judge Norgle again granted summary judgment for the defendant, noting that although a male's sexual acts toward a male coworker constituted "blatant sexual harassment" under the popular definition held by the public, it was not actionable sexual harassment under Title VII because it fell outside of Congress' original intent. 118
Many district courts have found same-sex harassment to be ac-tionable under Title VII. They have also indicated, however, that it is difficult for the needed causal nexus to be established in such cases.
For example, in Fox v. Sierra Dev. Co., 119 the court held that if male plaintiffs found the work environment to be hostile to them as "men qua men" 120 and not on the basis of sexual orientation, then same-sex harassment was actionable under Title VII. In addition, the court assumed that the Ninth Circuit would not require the offending conduct to be actionable. 121 Nonetheless, the plaintiffs in Fox, who alleged sexual harassment because supervisors and co-workers drew, wrote, and explicitly discussed urine, excrement, homosexual sex acts, and other topics openly in the workplace, 122 failed to allege sexual harassment. The court first noted that "the complaint merely alleges scatological and not coprophilial behavior." 123 The court found the [P.41] complaint deficient because it did not allege that this behavior was directed only at men or men qua men, but indicated that the behavior was "published widely to the general employee population." 124 The remaining conduct, which related to homosexual sex acts, did satisfy the test for hostile environment harassment, according to the court. 125 Nevertheless, the court went on to find that the sexual harassment was not discriminatory, because the work environment was potentially hostile to men and women equally. In the court's eyes, the plaintiffs did not perceive the work environment to be hostile to them because they were men; instead, they found the environment to be hostile be-cause "they, like some members of society, may not be entirely at ease with sexuality in general and homosexuality in particular." 126 The court also suggested that perhaps the men found it hostile because they were heterosexual or homophobic, in which case the environ-ment was hostile not because of the men's sex, but because of either their own sexual orientation or hostility to a homosexual sexual orientation. 127
In Easton v. Crossland Mortgage Corporation, 128 the district court held that same-sex harassment claims are not precluded by Title VII, because Title VII's prohibitions forbid any individual to wield power over another's employment in ways that discriminate because of the employee's sex. 129 However, the plaintiffs in Easton lost on a motion for summary judgment because there was insufficient evidence that the alleged harassment occurred because of sex. The work environ-ment at Crossland Mortgage Corporation was sexually charged, with sexuality being openly discussed in a female-dominated office. 130 Many of the female employees candidly discussed their own or each other's bodies, and some of the women exposed their breasts and touched other women's bodies during the work day. Sexual practices were also a topic of conversation at the office; the plaintiffs (all fe-male) were allegedly asked about their experiences with masturba-tion, orgasm, and sexual intercourse by their supervisor and other coworkers. A bawdy birthday bash involving photographs of nude [P.42] males, condoms, and a ring-toss game with an inflated penis was alleg-edly indicative of the kind of sexual banter and games that were an accepted part of working at the Crossland Mortgage office. 131 There was no allegation of lesbian sexual orientation or sexual attraction; the plaintiffs claimed simply to find the conduct offensive and inconsistent with their ability to maintain their positions or gain advancement. 132 The court noted that, in a same sex harassment case, conduct of a sexual nature could not be presumed discriminatory. The court opined:
Thus, although joining other courts in finding same-sex harassment actionable under Title VII when women plaintiffs allege harassment by women supervisors or coworkers, 134 the court did not find suffi-cient causal connection between the sex of the plaintiffs and the al-leged harassment.
In Ward v. Ridley Sch. Dist., 135 in which a coworker allegedly mooned the plaintiff, the court granted summary judgment to the de-fendant because the plaintiff failed to show that the alleged harass-ment had occurred because of his sex. Because Ward did not show that the mooning had occurred because of a sexual attraction for him on the part of his coworker, he had failed to establish that the behav-ior had occurred because he was male. 136
Another recent example is given by Shermer v. Illinois Dep't of Transp., 137 Shermer alleged that his supervisor made remarks in the workplace about Shermer's engaging in sexual acts with other men. The court found that, even if true, these remarks, although offensive, were not discriminatory within the meaning of Title VII. 138 The court [P.43] noted that absent proof that the harasser acted out of sexual attraction for the plaintiff, it was difficult for the same-sex plaintiff to prove that the harassment was due to his sex. 139 Although Shermer had claimed that his supervisor perceived him to be homosexual, and had sub-jected him to the harassment for that reason, the court did not see that as evidence that Shermer had been discriminated against because he was a man. In holding that actual or perceived homosexuality was not protected under Title VII, the court suggested that Shermer would have needed to prove that his supervisor would have discriminated against him even if he (Shermer) were known to be heterosexual. 140
Another example is provided by Vandeventer v. Wabash Nat'l Corp., 141 in which the district court allowed that same-sex harassment could be actionable under Title VII as long as the claim involved "gender bias," which could be either positive (preference or attrac-tion) or negative (prejudice) in nature. 142 Here, however, for a male to be called a "dick sucker" by another male, without evidence of that other male's homosexuality or, alternatively, his disdain for males generally, would not be actionable under Title VII. 143
Another final example of problems with causation occurred at trial in Johnson v. Hondo Inc. 144 Johnson worked as a night-loader at an all-male Coca-Cola bottling plant. He alleged that a male co-worker, Hicks, harassed him, and that in fact the harassment had led to violence. The harassment allegedly consisted of incidents where Hicks rubbed against him, grabbed and stroked his crotch, and made comments about performing fellatio. 145 After a year of such conduct, Johnson and Hicks came to physical blows. 146 Although the court found the conduct to be offensive, it did not see it as meeting the "because of sex" requirement. Although of a sexual nature, the be-havior existed in an all-male environment with no evidence that the [P.44] environment was anti-male; rather, the court found, Hicks directed the vulgarity toward Johnson out of personal animosity and not be-cause of Johnson's sex. 147 The court noted that Hicks' sexual orienta-tion was not the issue; in fact, since his comments were directed at both Johnson and Johnson's girlfriend, his sexual orientation was un-clear. 148 Summary judgment was granted to the defendant, 149 perhaps because the district court judge was motivated by the all-male work environment, the lack of clear homosexual attraction for Johnson, or both. On appeal to the Seventh Circuit, the judgment of the district court was affirmed. 150 A different panel of the Seventh Circuit distin-guished Johnson from Doe, noting that in Johnson there is "absolutely nothing in the record" to support Johnson's claim that his harassment occurred because of his sex. 151 The court did not view remarks such as "fuck me," "kiss my ass," and "suck my dick" as explicitly sexual in nature, even though they were sometimes accompanied by a "crotch-grabbing gesture." 152 These were "vulgar provocation" said the court, and not "truly sexual" in nature. 153 Unlike Doe, Johnson did not in-volve physical attacks or references to the nature of his biological sex. Further, the court did not believe that gender stereotyping played a role in his harassment. 154
This holding of the Seventh Circuit casts some doubt on the ap-parent expansiveness of Doe's holding and raises again problems of establishing sex-based causation for same-sex harassment claims.
CAUSATION AND SAME-SEX HARASSMENT UNDER TITLE VII
How do we attribute causation to an act of harassment? After all, for a person to be singled out as a target, and for the obnoxious, intimidating, unwelcome behaviors to occur in the way that they do, requires choices to be made by a perpetrator. Why the perpetrator chooses to engage in certain behaviors, and why a particular person is chosen to be the target of those behaviors, is undoubtedly complex. 155 [p.45] And, because the hostile environment model is a "purpose or effect" model, 156 it should be possible to establish causation by a showing of either an intention to discriminate or an effect or outcome that dis-criminates. So, whether some persons find conduct threatening, in-timidating, or offensive while others do not also becomes important. Clearly, the causal link between the plaintiff's sex and the unwanted behavior is complex, and legal causation in the hostile environment model should be sensitive to this complexity.
The legal causation issue has been problematic in same-sex har-assment claims. Title VII is not violated by conduct alleged to be sex-ual harassment unless there has been discrimination because of the plaintiff's sex. 157 Title VII cannot eliminate all rude, insulting, obnox-ious, or otherwise undesirable behavior from the workplace; it specifi-cally addresses discrimination. At the same time, Title VII does not require sexual conduct in order for there to be actionable sex discrimi-nation; in fact, most recognized sex discrimination does not address sexuality at all but is based on notions of biological sex. 158 Legal cau-sation under Title VII requires only that we identify whether sex is the cause of the harassment (either intentionally or by effect), so plaintiffs are forced to make a connection between their sex and the harassment they have suffered. Thus, the very label "sexual harassment" is a mis-nomer, because the harassment must be sex-based, not necessarily [P.46] sexual, in order to violate Title VII. And it is only the plaintiff's sex that is directly implicated by the causation requirement. 159 Nothing in the language of Title VII requires the harasser and target to be of different sexes. 160 Title VII's safeguards have been interpreted to flow to males as well as females. 161
Courts have not often specified the precise legal causation rea-soning they are using in male-female hostile environment cases. 162 [P.47] Thus, when confronted with same-sex cases, courts do not have clear standards to apply to the causation element, resulting in difficulties for plaintiffs who try to establish that their claims are sex-based. Any causation difficulties in male-female cases are compounded when the hostile environment claim is male-male or female-female.
I argue that sexual conduct -- sexualized language, sexual innu-endo, sexual touchings, sexual displays -- in same-sex cases should al-ways be actionable under Title VII, to the same extent that it is in male-female cases. Further, I argue that the same presumptions and inferences should apply in same-sex cases as in male-female harass-ment cases. Difficulty in establishing the causation nexus for sexual harassment varies depending on the type of conduct that is alleged to be harassing, even for traditional male-female claims. Some forms of [P.48] conduct are more likely to provide an inference of discriminatory in-tent whereas others reveal less about motivation but may produce an inference of discriminatory effect. 163 Thus, I present my arguments separately based on these two broad conduct categorizations.
BEHAVIORS VIEWED AS INTENTIONAL DISCRIMINATION IN MALE-FEMALE HOSTILE ENVIRONMENT CLAIMS
Behaviors that are directed at the plaintiff in male-female hostile environment cases tend to be viewed as intentional discrimination, although courts often do not address the precise causation reason-ing. 164 Perhaps the easiest behavior to see as intentional discrimina-tion is behavior directed at the plaintiff that is sexual in nature. 165 Courts have had no difficulty seeing sexual conduct directed at the plaintiff in male-female cases as sex-based. It is presumed to be sex-based. 166 Why, then, is there difficulty in seeing sexual conduct as sex-based in same-sex cases? The problem resides in courts' failures to acknowledge that the sex-based inference arises from an assumption of heterosexual orientation. In other words, courts appear implicitly to view the world through a heterosexual orientation lens. In same-sex cases, with the specter of homosexuality looming as a "cause" of the harassment, courts become aware of the role that sexual orienta-tion plays in interpreting harassing behavior. But sexual orientation also plays a causal role in male-female harassment cases; heterosexual orientation is not a lack of, or a "neutral," orientation. Thus, as ar-gued below, sexual conduct directed at the plaintiff in same-sex hostile environment cases should be presumed or inferred to be sex-based in the same manner that it would be if the claim were male-female.
Why does sexual conduct occur in the workplace? Although some might argue that such conduct arises from sexual attraction, 167 thereby directly linking the nature of the behavior to a similar-natured [p.49] underlying desire of the harasser, others would argue that directed sexual conduct -- and in fact all harassment -- arises from the perpetra-tor's need or desire to dominate, to maintain power and authority over the target and persons of the target's sex, or from the perpetra-tor's hostility or animus towards the target and persons of the target's sex. 168 These two explanations of what motivates the harassment would be expected to manifest themselves in somewhat different be-haviors. A harasser motivated by sexual attraction would be expected to engage in sexual behaviors that would attempt to express romantic or sexual interest and/ or the desire to engage in a romantic or sexual relationship, such as the use of sexual language, propositions, or touching, as well as nonsexual behaviors such as complimentary lan-guage, flirting, paying excessive attention to the target, sending gifts to the target, and other behaviors the harasser might consider positive and flattering. 169 A harasser motivated by hostility or a desire to dominate or control would be expected to engage in behaviors that are intimidating, ridiculing, or that generally would put the target in her or his "place," make her or him uncomfortable, and perhaps drive her or him away from the workplace. These behaviors could be sexual in nature, because sexual language, touching, etc. can be offensive, intimidating, and demeaning. But this view also supports a broader range of behaviors as purposefully harassing; conduct such as nonsex-ual assault, sabotage, and sexist remarks may be used to harass, just as flirting, excessive attention, and sending gifts could also be used to harass. 170 [P.50]
Because sexual conduct directed toward the plaintiff is expected or possible under both views of intentional harassment, courts can rely on either view to see behavior of a sexual nature as constituting sexual harassment under Title VII. This is certainly true for male-female hostile environment sexual harassment claims. 171 Behavior of a sexual nature between males and females has been inferred to be sex-based, because courts readily use the difference in sex to infer that the sexual behavior arose from either heterosexual attraction or heterosexual dominance/ hostility motivations.
The link from "sexual" to "sex" in male-female cases stems from a heterosexist bias. 172 For example, under the sexual attraction view, the following reasoning is implicit: When males (or females) engage in sexual behaviors in the workplace that are directed toward targets of different sex, 173 those behaviors are based on a heterosexual attrac-tion, and heterosexual attraction is assumed to be "based on" sex (and not sexual orientation). Sexual orientation is therefore invisible in this formula. Under the domination/ hostility view, the reasoning has been that persons may engage in sexual behaviors as a result of a de-sire to dominate (or express hostility to) persons who are "different" or "other," where the salient "otherness" is assumed to be difference in biological sex. Difference in biological sex is viewed as otherness due to underlying assumptions of heterosexual sexual orientation -- i. e., thinking in terms of "male" and "female" is relevant precisely because assumed (hetero) sexual orientation exists between them. Heterosexual sexual orientation is implicit in the causal connection for both views, and although it could be stated as the "real" cause of the [P.51] harassing behaviors -- i. e., the source of the attraction or the source of the need to dominate or control -- this implicit connection to sexual orientation is not articulated and in fact not overtly considered by the courts. Proof of heterosexual orientation is not required in male-fe-male hostile environment cases. 174 Nor is proof of sexual attraction nor desire to dominate. It is inferred from the sexual behaviors themselves. 175
This inferential leap is in stark contrast to the way that some courts have viewed sexual conduct in Title VII harassment claims when the persons are of the same biological sex. For example, con-sider the sexual attraction view of hostile environment harassment. Sexual behavior between persons of the same sex is not necessarily presumed to be based on homosexual attraction, which in turn need not be inferred or presumed to be based on sex. For example, in Hop-kins v. Baltimore Gas and Elec. Co., 176 Judge Niemeyer noted that when harasser and victim are of the same sex, the presumption that the harassment is "because of" the victim's sex does not apply: "[ T] he presumption is just the opposite [of that in male-female cases] because such sexually suggestive conduct [in same-sex cases] is usually moti-vated by entirely different reasons." 177 Thus, the plaintiff must over-come this presumption in order to state a viable claim under Title VII. According to Judge Niemeyer, the principal way of doing that in the Fourth Circuit would be to show that "the harasser acted out of sexual attraction to the [plaintiff]." 178 Thus, the Fourth Circuit requires a showing of homosexual attraction as the rationale for the sexual con-duct, which would require a showing that the harasser is homosexual or acting out of homosexual urges. 179 Apparently, once homosexual attraction is demonstrated, the Fourth Circuit automatically makes the [P.52] link from homosexual attraction to being based on sex, so that there could be a viable claim under Title VII. 180
Targets of sexual conduct motivated by sexual attraction have been selected precisely because of their biological sex -- different than that of the target for those of heterosexual sexual orientation, same as the target for those of homosexual sexual orientation. 181 Thus, if the link between sexual conduct and being based on sex is to be presumed for male-female cases, without proof of heterosexual orientation on the part of the harasser, then it should be presumed for same-sex cases, without proof of homosexual orientation on the part of the har-asser. The Sixth, Seventh, and Eighth Circuits appear to be in agree-ment with this analysis. 182
A similar problem arises under the domination/ hostility view of sexual conduct as hostile environment sexual harassment. When per-sons of the same sex are involved, it is less likely that a court will see the harasser's need to dominate the target, an imbalance of power between harasser and target, or animus toward the target's sex as a rationale for the harassment. Here, inference problems surrounding the rationale in selection of the target can arise (particularly if the target is perceived as of homosexual sexual orientation), as can infer-ence problems regarding an idiosyncratic response on the part of the target.
In Johnson v. Hondo Inc., 183 for example, the courts did not see the perpetrator's physical grabbing of and remarks about fellatio to the plaintiff (all of which ultimately led to physical violence) as stem-ming from hostility toward males or a need to dominate or exert power over other males. 184 Because the work environment consisted only of males, most of whom were not targeted for harassment, the domination/ hostility link was not inferred from harassment of only [P.53] one male. Despite the Seventh Circuit's rather expansive holding in Doe v. City of Belleville, 185 the Seventh Circuit panel in Johnson, did not see the problematic behaviors as sex-based. It noted that when using expressions such as "fuck me" or "suck my dick" to other men, their use is not connected to the sexual acts themselves, and therefore is not viewed as sex-based. 186 The court readily dismissed such lan-guage, even when accompanied by physical grabbing, as "expressions of animosity or juvenile provocation." 187 Although such language may be labeled juvenile in nature, the fact that it expressed animosity toward Johnson requires further analysis. Why was the animosity ex-pressed in this particular manner? I would argue that the sexual of-fensive nature of the language and conduct makes it sex-based, as it would undoubtedly have been if it had been directed at a woman. Whether it was literally intended to produce the sexual acts described is beside the point.
Also problematic in Johnson is the Seventh Circuit's dismissal of a possible homosexual motivation for the conduct. Although indicat-ing that same-sex harassment cases need not require proof of a homo-sexual harasser in order to be actionable, 188 the court observes that allegations of homosexuality as underlying the conduct were not sup-ported by the record. 189 Thus, Johnson had not produced sufficient evidence to withstand a motion for summary judgment. 190 In differ-ent- sex cases, however, heterosexuality would have been presumed and therefore no allegations or evidentiary showing would have been required.
Views such as the Johnson court's view may explain that the har-assment is likely the result of a personality clash, or personal animos-ity towards the plaintiff, or some other idiosyncratic purpose. In male-female cases, however, violent sexual grabbing and denigrating sexual commentary of one woman alone would be enough for the court to believe that the conduct occurred because of the woman's sex, not because of a personality clash or personal animosity. 191 [P.54] Courts seeing a hostility or a desire to dominate as underlying the male-female harassment do not require all women to be targeted, nor do they require an explanation of why some women become targets and others don't. A woman can be viewed as an individual, represent-ing the class of women as a whole. Thus, even though women as a class form a highly differentiated group, it is not necessary to provide generalized proof of hostility towards all women, or women in general.
There is no clear rationale why the presumption for male-female cases involving directed sexual conduct should be different than that for same sex cases. Why presume that men (women) target other men (women) for particularized, idiosyncratic reasons instead of more gen-eral ones? The differences approach is based on the assumption that because of difference in sex -- which only seems "natural" or impor-tant because of the heterosexual orientation lens -- it is likely that one sex will experience animus, hostility, or a need to dominate the other. It seems equally likely that some males (females) will experience ani-mus, hostility, or a need to dominate other males (females).
One problematic area in which courts do see that males may act out of a generalized hostility to (some) other males is when the other males either are, or are perceived to be, gay. 192 In this situation, courts may see the target of the harassment as having been chosen because of his sexual orientation. In other words, courts may view any such harassment as stemming from a hostility toward homosexual sexual orientation, and not sex, thereby disallowing the claim under Title VII. 193 However, if only men are targeted, then the harassment should easily be inferred to be due to sex, not sexual orientation. Hostility toward homosexuality as a general orientation would be ex-pected to be manifested in harassment of both gays and lesbians. 194 [P.55]
The fact or belief that the plaintiff is gay or lesbian should not disqualify a claim of sexual harassment under Title VII. 195 Assume, for example, that a male feels hostility toward women who are taller than he, and he occasionally harasses a few taller women with deroga-tory language and forceful physical touching (such as shoving). Courts would tend to readily see this as sex-based for purposes of Ti-tle VII; the fact that not all women were targeted, or that not even all women taller than the male were targeted, would not nullify the claim. 196 Nor would the fact that height is not a protected class, even though it is only women of a certain height who are potential targets of the harassment. Now assume that this male feels hostility towards males, not females, who are taller than he. Only men are targeted for the derogatory language and forceful physical touching. Once again, the claim should appear to be sex-based, and once again, the height issue should not nullify the claim. Finally, suppose now that the male targets only males that he believes to be gay. The claim should be viewed as sex-based, because only males are targeted. The fact that sexual orientation is not a protected class, just as height was not, is irrelevant to whether the claim is sex-based under Title VII. 197
In Shermer v. Illinois Dep't of Transp., 198 for example, the court erroneously denied Shermer's claim as being based on sexual orienta-tion. Shermer's supervisor had allegedly made remarks about Sher-mer's engaging in sexual acts with other men. The court appeared to believe that these remarks occurred because the supervisor perceived Shermer to be a homosexual, but not because Shermer was a male. The court indicated that Shermer would need to show that these re-marks would have been made against him even if he were believed to be heterosexual in order to show that his claim was sex-based, and not [P.56] based on sexual orientation. 199 Because there was no evidence that Shermer's supervisor made offensive remarks about sexual orienta-tion to females, the claim should have been seen as sex-based. Sher-mer's actual or perceived homosexual orientation was irrelevant to his claim of sex-based harassment. It was hostility toward him as a male (albeit one perceived to be gay), a need to exert power over a male who is perceived to be "different," that would seem to have motivated the harassment.
Similarly, in Vandeventer v. Wabash Nat'l Corp., 200 the plaintiff, who was called a "dick sucker" by another male, should have received an inference that the harassment was based on sex. The court held that without evidence of sexual attraction and without evidence of the harasser's animus for males as a class, the plaintiff did not establish causation under Title VII. 201 Thus, the plaintiff's singularity in being called a "dick sucker" was used erroneously as evidence that he was not singled out because of his sex. So far, among the federal courts of appeal, only the Seventh Circuit ruling in Doe v. City of Belleville and the Eighth Circuit ruling in Quick v. Donaldson Co., Inc. would ap-pear to offer this much protection to plaintiffs. 202 In that case, verbal harassment, coupled with violent sexual and physical touchings, were presumed to be directed at the plaintiff because of his sex, absent evi-dence that similar conduct was directed at females. 203
BEHAVIORS NOT NECESSARILY VIEWED AS INTENTIONAL DISCRIMINATION IN MALE-FEMALE HOSTILE ENVIRONMENT CLAIMS
Some behaviors are harder to see as intentional discrimination, even if they are sexual in nature; for example, they might not be di-rected specifically at the plaintiff, but the plaintiff nonetheless com-plains that they are unwelcome and offensive. These behaviors contribute to a sexualized workplace ambience. 204 When behaviors [P.57] are not directed specifically at the plaintiff, he or she must still estab-lish that the harassment (the hostile environment) is based on sex. This may mean that the reason the plaintiff finds the behaviors to be harassing or hostile -- i. e., the experienced effect or consequence of the behaviors -- is because of the plaintiff's sex. In traditional, male-female hostile environment analysis, these nondirected sexual behav-iors can still constitute illegal sex discrimination under Title VII be-cause of their different effects on males and females. 205
Some traditional cases have been brought by females who have complained about sexualized language or erotic pictorial displays in workplaces where males are present. Females who bring these cases rely on arguments that they find these behaviors offensive and unwel-come to them as females. In other words, females have claimed that they suffer a discriminatory effect from these types of behaviors. Courts have tended to see this reasoning as satisfying the requirement that the harassment be sex-based and have not always articulated the precise linkage that makes the causation related to sex. 206
In cases brought by males against other males as perpetrators, it is sometimes the plaintiff's attitudes towards sexuality, and not the ef-fect of the sexual conduct itself, that is viewed as the cause of the harassment. 207 Thus, the role of the plaintiff/ victim is treated differ-ently in same-sex cases than in male-female cases.
For example, in Fox v. Sierra Dev. Co., 208 although the court per-mitted same-sex harassment claims under Title VII, it held that there was insufficient evidence that the male plaintiffs had been harassed on the basis of sex. The court noted that the men could have found the sexually-charged work environment to be hostile because they were uncomfortable with sexuality in general or homosexuality in particu-lar, 209 suggesting that it was the men's more idiosyncratic reactions -- not any sex-based effects -- that caused the harassment. 210 Thus, the [P.58] discussions about and drawings and writings of male-to-male sex acts were not seen as sex-based because the men's reactions to them were viewed as idiosyncratic sexual discomfort.
Similarly, in Easton v. Crossland Mortgage Corp., 211 where the work environment was found to be sexually charged with commentary and behaviors regarding women's sexuality, the female plaintiffs were unable to establish that the harassment was because of their sex. The court refused to presume causation because there was no concern for sexual violence or male dominance in their female-dominated work environment. 212 The court went on to note that there was insufficient evidence to support any sex-based causation, indicating that a woman who found the office atmosphere to be offensive may be uncomforta-ble with open or vulgar expressions of sexuality in the workplace, but that sexual discomfort did not support a violation of Title VII. 213
The Fox and Easton cases stand in stark contrast to male-female harassment cases involving female plaintiffs where "sexual discom-fort" is not an issue for determining whether the harassment was based on sex. 214 When males appear to be producing the harassing behaviors of which females complain, the invisible heterosexual orien-tation lens allows an inference that the females complain because of their sex, and not because of discomfort with heterosexuality. In neither Fox nor Easton did the court acknowledge that the sexual dis-comfort was felt by only or primarily one sex, which should have ren-dered it sex-based. In Fox, there was discussion of gay male sex acts, to which the plaintiffs reacted negatively precisely because they were male. 215 In Easton, the plaintiffs were subjected to discussions and touching of their own bodies, 216 as well as discussions about their ex-periences with masturbation, orgasm, and intercourse. Whatever the motivations of the perpetrators, the plaintiffs could easily have found these behaviors uncomfortable because they were female. [P.59]
The Fox court justified this differential treatment of same-sex cases by distinguishing between conduct that is sexual in nature and conduct that is harmful to one sex because it intimidates, ridicules, or insults members of that sex. 217 It noted that nude photographs of wo-men, sexual language, and other conduct in the workplace fits into a bigger picture of hostility to women, because "[w] omen have histori-cally been subjugated, been at a far greater risk of rape and sexual assault, and are commonly depicted in pornography in images of sex-ual coercion, objectification and coercion [sic]." 218 The Easton court relied on similar logic when it noted that there was no threat of sexual violence or male domination in the primarily female work environ-ment. 219 But this perspective views "based on sex" through a hetero-sexual orientation lens; the historic subjugation of women has to do with heterosexual sexual orientation and women's roles in heterosex-ual marriage and family arrangements. 220 Rape and sexual assault are also heterosexist rationales for treating male-female cases differently: Although rape and sexual assault are crimes of violence that manifest themselves in sexual behaviors, the risk to women of rape and sexual assault that the court notes comes from males of heterosexual sexual orientation. 221 Similarly, the Fox court's view of pornography is based on heterosexual sexual orientation; to use pornography as a justifica-tion for treating male-female harassment differently is to take note of the role of pornography in representing heterosexual relations be-tween males and females. Thus, although the court would apparently presume that females view such forms of harassment as intimidating or hostile because they are female, it is unwilling to see such depic-tions as intimidating or hostile to males because they are males. 222 Unlike in heterosexual pornography, which involves male objectifica-tion of the female "other," the court finds no clear "other" when the actors are all male. 223 This, of course, misses the point that there are depictions of sexual coercion and violence in homosexually-oriented [P.60] pornography as well as in heterosexually-oriented pornography. 224 Males may find such depictions in gay pornography offensive precisely because they are male. The Fox court was heterosexist in its reasoning.
This is not to say that persons who are uncomfortable with homo-sexual sexual orientation should be allowed to use their sexual dis-comfort to treat gay and lesbian coworkers differently than straight coworkers. Another prong of the hostile environment test, that the harassment must be sufficiently severe or pervasive, both subjectively and objectively, 225 is the place to eliminate such unreasonable claims. For example, one well-known, male-female hostile environment case is Rabidue v. Osceola Refining Co., 226 in which the Sixth Circuit ruled that obscene remarks directed to the plaintiff, coupled with sexually-oriented poster displays of women in the workplace, were insufficient to establish a hostile work environment:
In Rabidue, this perspective caused the hostile environment suit to fail on the severity/ pervasiveness element -- a reasonable person would not find the language and displays to be harassing, according to the court. 228 Although the court's position on sexually-oriented posters in [P.61] the workplace should be criticized, 229 the Sixth Circuit was certainly right in considering sexual discomfort within the severity/ pervasive-ness prong of the test instead of the "because of sex" prong. Whether it would or should be reasonable for a male (female) to find discus-sions of gay (lesbian) sex harassing enough to create a hostile environ-ment is a distinct factual issue that courts should address under the sufficiency/ pervasiveness prong. In the absence of a specific showing that these males (females) were reacting for personal and not sex-based reasons, the Title VII claim should not fail due to lack of causation.
Sexual conduct in same-sex cases under Title VII is not currently
treated the same way under male-female and same-sex claims. By op-erating
under presumptions and inferences in male-female cases that
are implicitly based on heterosexual sexual orientation, courts have
injected sexual orientation issues into Title VII, all the while aspiring
and/ or claiming to keep them out. The heterosexist assumptions un-derlying
analysis of sexual harassment in male-female claims has al-lowed
courts to: (1) ignore heterosexual sexual orientation as though
it is irrelevant to causation, (2) not require all persons of a given bio-logical
sex, or even most such persons, to be subjected to the same
treatment by persons of a different sex in order to view the claim as
sex-based, and (3) view the recipient of the male-female harassment
as a representative member of his or her biological sex class, absent
evidence of individualized animosity, hostility, or other idiosyncracy.
Although most courts have held that same-sex harassment is ac-tionable
under Title VII, they have also imposed additional hurdles
for plaintiffs in such cases to establish that their claims are based on
sex. When sexual conduct is involved, and the parties are of the same
biological sex, the plaintiff should receive a presumption or inference
that sexual conduct is sex-based without having to provide additional
evidence that would not be required in male-female harassment cases.
To do otherwise is to treat sex-based claims for persons of heterosex-ual
and homosexual sexual orientation differently under Title VII, and
there is nothing in the language of Title VII that supports this treat-ment.
Title VII does not favor one sexual orientation over another; it
[P.62]is neutral with regard to sexual orientation. Gays and lesbians should therefore receive protection under Title VII for sex discrimination, to the same extent that heterosexual persons do. And, gays and lesbians should be prohibited from harassing others in the workplace, just as heterosexual males and females are so prohibited. By eliminating the heterosexist perspective, courts would see Ti-tle VII as permitting all persons, regardless of sexual orientation, to be equally protected from employment-related sexual behaviors.
* Associate Professor, Department of Management, Texas A& M University.
1. See, e. g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 103-116 (1987); CATHA-RINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMI-NATION (1979).
2. See, e. g., BARBARA RESKIN & IRENE PADAVIC, WOMEN AND MEN AT WORK 127-141 (1994).
3. See Harris v. Forklift Sys., Inc., 510 U. S. 17 (1993) (holding that psychological harm is but one factor to be taken into account in the hostile environment claim); Meritor Sav. Bank v. Vinson, 477 U. S. 57 (1986) (holding that economic harm is not an element of the hostile environ-ment claim). See also DEBORAH L. RHODE, JUSTICE AND GENDER 231-32 (1989).
4. The Meritor Savings Bank case indicated that evidence of the plaintiff's appearance and/ or conduct would be relevant to a determination of whether the conduct alleged to be harassing would be considered unwelcome. 477 U. S. at 68-69.
5. See, e. g., Ramona L. Paetzold & Bill Shaw, A Postmodern Feminist View of "Reasona-bleness" in Hostile Environment Sexual Harassment, 13 J. BUS. ETHICS 681 (1994).
6. See, e. g., DEBORAH L. RHODE, JUSTICE AND GENDER 230-73 (1989).
7. CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979). As her title suggests, sexual harassment is illegal under Title VII of the Civil Rights Act of 1964, 42 U. S. C. ¦ 2000e( 1)-e( 17)( 1994), only when it can be construed as a form of sex discrimination.
8. See infra notes 18-30 and accompanying text.
9. For prototypical cases, see, e. g., Harris v. Forklift Sys., Inc., 510 U. S. 17 (1993) (involving females denigrated by sexualized remarks of a supervisor); Meritor Sav. Bank v. Vinson, 477 U. S. 57 (1986) (involving a female pressured for sex by her supervisor).
10. See, e. g., McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976) (holding that white persons may bring race discrimination claims under Title VII); EEOC v. Sedita, 755 F. Supp. 808 (N. D. Ill. 1991) (finding sex discrimination against males under Title VII), vacated on other grounds, 816 F. Supp. 1291 (N. D. Ill. 1993).
11. See, e. g., Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 (D. R. I. 1991).
12. See David E. Rovella, Same-Sex Harassment Suits on Rise, NAT'L L. J., Feb. 10, 1997, at A1, A22.
13. "Sex" refers to biological sex, which is physiologically based (in this article, male and female). Sex should be distinguished from gender, which refers to a socially constructed classifi-cation that exaggerates differences between males and females. See BARBARA RESKIN & IRENE PADAVIC, WOMEN AND MEN AT WORK 2-3 (1994). Gender therefore is socially or culturally defined masculinity and femininity, which can be seen as performative. See, e. g., JUDITH BUT-LER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990); CYNTHIA F. EP-STEIN, DECEPTIVE DISTINCTIONS: SEX, GENDER, AND THE SOCIAL ORDER (1988); Janis S. Bohan, Regarding Gender: Essentialism, Constructionism, and Feminist Psychology, 17 PSYCHOL. WOMEN Q. 5 (1993); Rachel T. Hare-Mustin & Jeanne Marecek, The Meaning of Difference: Gender Theory, Postmodernism, and Psychology. 43 AM. PSYCHOLOGIST 455 (1988); Eleanor E. Maccoby, Gender as a Social Category, 24 DEVELOPMENTAL PSYCHOL. 755 (1988); Druann Pag-liassotti, On the Discursive Construction of Sex and Gender, 20 COMM. RES. 472 (1993).
"Sexual orientation" refers to the patterns of sexual attractions, fantasies, desires, and prac-tices of persons. See Holly Devor, Sexual Orientation Identities, Attractions, and Practices of Female-to-Male Transsexuals, 30 J. SEX RES. 303, 303 (1993). For purposes of this article, only two primary orientations will be considered: heterosexuality and homosexuality. Other views of sexual orientation (in relation to law) are discussed in RUTH COLKER, HYBRID: BISEXUALS, MULTIRACIALS, AND OTHER MISFITS UNDER AMERICAN LAW (1996).
14. Title VII's language refers to discrimination on the basis of sex (and not "gender"). 42 U. S. C. ¦ 2000e-2( a) (1994). Many courts use the two terms interchangeably, but their focus under Title VII is on sex (i. e., males and females).
15. Although my focus is on conduct of a sexual nature, my arguments sometimes apply to more general conduct. See infra note 168 and accompanying text.
16. I purposely use "male-female" as the label for cases that are not same-sex cases so as to undermine the notion of "opposite" that would commonly be used. Because I do not view male-female as "opposite" sexes, and because I do not want to encourage thinking of male-female scenarios as being opposite to male-male or female-female scenarios, I avoid the use of that word.
17. For a partially opposing view regarding Title VII's protections, see Carolyn Grose, Same-Sex Sexual Harassment: Subverting the Heterosexist Paradigm of Title VII, 7 YALE J. L. Feminism 375 (1995) (arguing that gays and lesbians are not protected from sexual harassment under Title VII).
18. The first case to find that sexual harassment was illegal sex discrimination was Williams v. Saxbe, 413 F. Supp. 654 (D. D. C. 1976), rev'd sub nom. Williams v. Bell, 587 F. 2d 1240 (D. C. Cir. 1978).
19. See, e. g., Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545 (M. D. Ala. 1995); Fox v. Sierra Dev. Co., 876 F. Supp. 1169 (D. Nev. 1995); Wright v. Methodist Youth Serv., Inc., 511 F. Supp. 307 (N. D. Ill. 1981).
20. Other situations should be relatively obvious; for example, a plaintiff's job security may be threatened unless he or she has sexual relations with a superior, or a plaintiff's job security or promotion could be in danger if he or she stops having such relations with a superior. See, e. g., Barnes v. Costle, 561 F. 2d 983 (D. C. Cir. 1977); Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205 (D. R. I. 1991).
21. See Barnes, 561 F. 2d at 988-90. The individual disparate treatment model under Title VII is articulated in St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U. S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).
22. 42 U. S. C. ¦ 2000e-2( a)( 1) (1994).
23. 477 U. S. 57 (1986).
24. See Id. at 64-66.
25. Id. at 67 (quoting Henson v. City of Dundee, 682 F. 2d 897, 904 (11th Cir. 1982)).
26. See Id. at 68.
27. See, e. g., Ellison v. Brady, 924 F. 2d 872 (9th Cir. 1991); Paroline v. Unisys Corp., 879 F. 2d 100, 104-05 (4th Cir. 1989), rev'd in part on other grounds en banc, 900 F. 2d 27 (4th Cir. 1990); Jones v. Flagship Int'l, 793 F. 2d 714, 719-20 (5th Cir. 1986); Highlander v. K. F. C. Nat'l Management Co., 805 F. 2d 644, 648 (6th Cir. 1986).
28. See Harris v. Forklift Sys., Inc., 510 U. S. 17, 21-22 (1993).
29. 510 U. S. 17 (1993).
30. See Id. at 22.
31. 83 F. 3d 118 (5th Cir. 1996), cert. granted, 117 S. Ct. 2430 (1997).
32. See infra notes 33-64 and accompanying text.
33. 28 F. 3d 446 (5th Cir. 1994).
34. 12 F. 3d 208 (5th Cir. 1993)( unpublished table decision), cert. denied, 513 U. S. 925 (1994).
35. Garcia, 28 F. 3d at 452.
36. Some district courts have interpreted Garcia's prohibition as mere dicta, on the basis that the court had already found an independent basis for affirming the grant of summary judg-ment to the defendants. See, e. g., Pritchett v. Sizeler Real Estate Management Co., 67 Fair Empl. Prac. Cas. (BNA) 1377 (E. D. La. Apr. 25, 1995).
37. Oncale v. Sundowner Offshore Serv., Inc., 83 F. 3d 118 (5th Cir. 1996), cert. granted, 65 U. S. L. W. 3809 (1997). The conduct described in Oncale was even more extreme than the con-duct in Garcia; Oncale alleged that two co-workers restrained him while his supervisor placed his penis on Oncale's neck and arm, that he was threatened with rape by his supervisor and a co-worker, and that his supervisor shoved a bar of soap into his anus while Oncale was restrained by a co-worker. See Id. 118-19.
38. 72 F. 3d 1191 (4th Cir.), cert. denied, 117 S. Ct. 72 (1996).
39. 77 F. 3d 745 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996).
40. 99 F. 3d 138 (4th Cir. 1996).
41. See McWilliams, 72 F. 3d at 1193. The physical assaults were decidedly sexual in nature. McWilliams claimed that he had been blindfolded, hands tied, and forced to his knees. Once, a co-worker placed a finger in his mouth in simulation of an oral sex act. Another time, co-work-ers placed a broomstick between McWilliams' buttocks while another co-worker exposed himself to McWilliams. In a separate assault, a co-worker fondled McWilliams on the bus. See Id.
Additionally, McWilliams received sexual advances from a co-worker, who offered him money for sex, put his arm around him after following him into the men's room, and offered to masturbate McWilliams. See Id. at 1199.
42. The court noted that copies of Playboy magazine and other pornographic material were displayed in the bathrooms. Centerfold photographs of scantily clad women were displayed in work areas, and the radio was often tuned to talk shows that "featured explicit sexual refer-ences." Id. at 1199.
43. See Id. at 1194.
44. See Id. at 1195. Although some of the alleged harassment was of a homosexual nature, see Id. at 1198 (Michael, J. dissenting), there were no specific allegations that the defendants were homosexual. The Court explicitly noted that this ruling did not reach same-sex claims where either victim or alleged harasser are homosexual or bisexual. See Id. at 1195 n. 4.
45. See Id. at 1196.
46. See Id.
47. See Id. The court's attribution was to the harassers' "own sexual perversion, obsession, or insecurity. Certainly 'because of' their vulgarity and insensitivity and meanness of spirit." Id. Thus, the court, by this attribution, may have explained why these harassers engaged in their conduct, but not why they chose McWilliams as their victim. The earlier attribution to him of "prudery, or shyness, or other form of vulnerability to sexually-focussed speech or conduct[,]" Id., would appear to be the court's causal explanation of why McWilliams was targeted.
48. Judge Michael dissented, in part, because he viewed McWilliams' claim as actionable under Title VII. In his view, "[ t] he acts of assault and harassment [were] sufficiently direct and suggestive by themselves to raise the question whether they were done 'because of . . . sex'." Id. at 1199 (Michael, J., dissenting). Judge Michael would not have required proof of sexual orienta-tion as an element of such a claim, although he recognized that it might be relevant to proving that harassment occurred because of the plaintiff's sex. See Id. at 1198. He would have held that "Title VII is implicated whenever a person physically abuses a co-worker for sexual satisfaction or propositions or pressures a co-worker out of sexual interest or desire." Id.
49. See Hopkins, 77 F. 3d at 751.
50. See Id.
51. Id. at 752.
52. Id. (citing McWilliams v. Fairfax County Bd. of Supervisors, 72 F. 3d 1191, 1195 n. 5 (4th Cir. 1996)).
53. See 77 F. 3d at 755.
54. 99 F. 3d 138 (4th Cir. 1996).
55. See Id. at 143-44.
56. See Id. at 141-43.
57. 112 F. 3d 1503 (11th Cir. 1997).
58. Id. at 1510. The court was narrow in its holding and wanted to make clear that it was not holding that discrimination based on sexual orientation was actionable under Title VII.
59. 107 F. 3d 443 (6th Cir. 1997).
60. See Id. at 448. The Sixth Circuit had earlier rejected a same-sex harassment claim in Fleenor v. Hewitt-Soap Co., 81 F. 3d 48 (6th Cir.), cert. denied, 117 S. Ct. 170 (1996), but on the ground that the employer had responded promptly to eradicate the harassment. The Fleenor court did not reach the issue of the viability of the same-sex claim under Title VII.
61. 90 F. 3d 1372 (8th Cir. 1996).
62. See Id. at 1375.
63. Male coworkers placed tags on his forklift and belt loop that referred to a sexual act with a cucumber, and that stated phrases such as "Pocket Lizard Licker" and "Gay and Proud." The word "queer" was written on his work identification card. See Id.
64. Id. at 1378.
65. See Id. at 1379 (citing Harris v. Forklift Sys., Inc., 510 U. S. 17, 25 (Ginsburg, J., concurring)).
66. See Id. at 1377 (citing Burns v. McGregor Elec. Indus., Inc., 989 F. 2d 959, 964-65 (8th Cir. 1993)).
67. 119 F. 3d 563 (7th Cir. 1997).
68. Id. at 566-67.
69. Id. at 567.
72. Id. at 567-68.
73. Id. at 590-91.
74. Id. at 576-80.
75. Id. at 569-70.
76. Id. at 575.
77. Id. at 580.
78. Id. at 581.
79. 490 U. S. 228 (1989).
80. Doe v. City of Belleville, 119 F. 3d at 581-82.
81. Id. at 586.
82. Id. at 587 n. 22.
83. See infra notes 67-82.
84. See, e. g., Johnson v. Hondo, Inc., 940 F. Supp. 1403 (E. D. Wis. 1996); Shermer v. Illinois Dep't of Transp., 937 F. Supp. 781 (C. D. Ill. 1996); Tietgen v. Brown's Westminster Motors, Inc., 921 F. Supp. 1495 (E. D. Va. 1996); King v. M. R. Brown, Inc., 911 F. Supp. 161 (E. D. Pa. 1995); Easton v. Crossland Mortgage Corp., 905 F. Supp. 1368 (C. D. Cal. 1995); Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805 (N. D. In. 1995); Raney v. District of Columbia, 892 F. Supp. 283 (D. D. C. 1995); Nogueras v. University of Puerto Rico, 890 F. Supp. 60 (D. P. R. 1995); McCoy v. Johnson Controls World Serv., Inc., 878 F. Supp. 229 (S. D. Ga. 1995); Fox v. Sierra Dev. Co., 876 F. Supp. 1169 (D. Nev. 1995); Sardinia v. Dellwood Foods, Inc., No. 94 Civ. 5458 (LAP), 1995 U. S. Dist. LEXIS 16073 (S. D. N. Y. Nov. 1, 1995); EEOC v. Walden Book Co., 885 F. Supp. 1100 (M. D. Tenn. 1995); Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545 (M. D. Ala. 1995); Joyner v. AAA Cooper Transp., 597 F. Supp. 537 (M. D. Ala. 1983); Wright v. Meth-odist Youth Serv., Inc., 511 F. Supp. 307 (N. D. Ill. 1981).
85. See, e. g., Torres v. National Precision Blanking, 943 F. Supp. 952 (N. D. Ill. 1996); Schoiber v. Emro Mktg. Co., 941 F. Supp. 730 (N. D. Ill. 1996).
86. See infra notes 99-128 and accompanying text.
87. 878 F. Supp. 1545 (M. D. Ala. 1995).
88. Id. at 1550.
89. See Id. at 1551. The court noted in dicta that in a hostile environment claim, if the supervisor had created such an environment for all workers, no Title VII violation would exist because the harassment would not be based on sex, and hence not a form of sex discrimination. See Id. at 1551 n. 6. (The court used the term "gender" instead of "sex" in this context.)
90. 511 F. Supp. 307 (N. D. Ill. 1981).
91. See Id. at 310.
92. See infra notes 74-91 and accompanying text.
93. No. 96-C-2354, 1996 U. S. Dist. LEXIS 13042 (N. D. Ill. Sept. 6, 1996).
94. The superior had invited Peric to use his office shower and to share a room with him when traveling, had solicited his views on homosexuality, had insinuated that Peric himself was gay and had an attractive body, and had grabbed and fondled Peric's genitals. See Id. at *3.
95. See Id. at *10.
96. 94 Civ. 5458 (LAP), 1995 U. S. Dist. LEXIS 16073 (S. D. N. Y. Nov. 1, 1995).
97. He alleged that he was told by one supervisor that he had "a nice ass" and that the supervisor wanted to have anal intercourse with him. Also, comments about the size of his penis were purportedly made publicly. See Id. at *2.
98. See Id. at *2-* 3.
99. Id. at *14.
101. See Id. at *16.
102. See Id. at *18.
103. 892 F. Supp. 283 (D. D. C. 1995).
104. Id. at 287 (quoting EEOC Compliance Manual ¦ 615.2 (1981)).
105. See Id. at 288. Other cases have also noted the EEOC position with approval. See, e. g., Swage v. The Inn Phila., No. 96-2380, 1996 U. S. Dist. LEXIS 8795 (E. D. Pa. June 21, 1996); Williams v. District of Columbia, 916 F. Supp. 1 (D. D. C. 1996); Tanner v. Prima Donna Resorts, Inc., 919 F. Supp. 351 (D. Nev. 1996).
106. 878 F. Supp. 229 (S. D. Ga. 1995).
107. Id. at 231. One of the black females also forced her tongue into the plaintiff's mouth on one occasion. See id.
108. See Id. at 232.
109. 890 F. Supp. 60 (D. P. R. 1995).
110. See Id. at 63.
111. See supra notes 95-98 and accompanying text. This excludes those district courts in the Fifth Circuit that are following the precedent set by Garcia v. Elf Atochem North Am., 28 F. 3d 446 (5th Cir. 1994) (holding that same-sex harassment is not actionable under Title VII).
112. 50 F. 3d 428 (7th Cir. 1995).
113. Id. at 430 (emphasis added).
114. No. 94-3699, 1997 U. S. App. LEXIS 17940 (7th Cir. July 17, 1997).
115. 941 F. Supp. 730 (N. D. Ill. 1996).
116. See Id. at 737.
117. 943 F. Supp. 952 (N. D. Ill. 1996).
118. See Id. at 961-62.
119. 876 F. Supp. 1169 (D. Nev. 1995).
120. Id. at 1172.
121. Id. at 1172-73. The court noted that the Ninth Circuit had implicitly held that harass-ment based on gender but devoid of sexual behavior per se is actionable under Title VII. Inter-estingly, the case cited for this proposition is Steiner v. Showboat Operating Co., 25 F. 3d, 1459 (9th Cir. 1994), cert. denied, 115 S. Ct. 733 (1995), in which the harasser was alleged to have harassed both men and women, and therefore not to have engaged in sexual harassment. The Ninth Circuit had noted that harassment of males and females could occur differentially, so that while the men were not harassed because they were men, the women's harassment "centered on the fact that they were females. It is one thing to call a woman 'worthless, ' and another to call her a 'worthless broad. '" Id. at 1464. This distinction highlights that there can be differential perceptions and/ or effects of conduct on men and women. For example, a male supervisor could slap both men and women on the buttocks, or give them both hugs, and their perceptions of the conduct might be different. This consideration is discussed infra at note 165 and accompanying text.
122. See Id. at 1172.
123. Id. at 1173. The word the court was looking for was "coprophilic," which means having an obsessive or abnormal interest in excrement, particularly as it relates to sexual excitement. AMERICAN HERITAGE DICTIONARY 416 (3d ed. 1992).
124. 876 F. Supp. at 1173.
125. See Id. at 1174. The court distanced itself from an endorsement that it is "reasonable" to find the homosexual nature of a work environment hostile or abusive, however, noting that any sexually suggestive or sexually pervasive work atmosphere might reasonably be considered to be hostile. See Id. at 1174 n. 3.
126. Id. at 1175.
127. See Id. at 1175 n. 6.
128. 905 F. Supp. 1368 (C. D. Cal. 1995), rev'd on other grounds, 114 F. 3d 979 (9th Cir. 1997).
129. See Id. at 1380.
130. See Id. at 1373-75.
131. See Id. at 1372-73.
132. See Id. at 1374.
133. Id. at 1383 (footnote omitted).
134. See, e. g., McCoy v. Johnson Controls World Servs., Inc., 878 F. Supp. 229 (S. D. Ga. 1995); Nogueras v. University of Puerto Rico, 890 F. Supp. 60 (D. P. R. 1995).
135. 940 F. Supp. 810 (E. D. Pa. 1996).
136. See Id. at 812-13.
137. 937 F. Supp. 781 (C. D. Ill. 1996).
138. See Id. at 784-85.
139. See Id at 784.
140. See Id. at 785. The court also noted that since the work environment was all-male, it was impossible to know how females would have been treated. Additionally, there was no evi-dence of a general anti-male animus. See Id. at 784.
141. 887 F. Supp. 1178 (N. D. Ind. 1995).
142. See Id. at 1181. The court noted that this could mean favorable bias because of homo-sexuality, or negative bias (prejudice) against one's own sex. See Id.
143. See Id. at 1181 n. 2.
144. 940 F. Supp. 1403 (E. D. Wis. 1996).
145. Hicks allegedly made comments such as "I'm going to make you suck my dick," and suggested that Johnson's girlfriend should engage in fellatio with Hicks because she had "a nice ass." Id. at 1406.
146. Hicks used a car jack and Johnson used a baseball bat to settle their dispute. Hicks was transported by ambulance to a hospital, but Johnson was able to return to work. Both men were ultimately terminated for fighting. See Id.
147. See Id. at 1410-11.
148. See Id. at 1411.
149. See Id.
150. Johnson v. Hondo, Inc., No. 96-3492, 1997 U. S. App. LEXIS 22827 (7th Cir. Aug. 28, 1997).
151. Id. at *10.
152. Id. at *10-* 11.
153. Id. at *16.
155. I do not mean to imply that these choices are independent of each other; indeed, selec-tion of target and manner of behavior are probably highly interrelated. For example, a given male may harass some women through particular language or pictorial displays, may sexually desire others and be more sexually aggressive towards them, and may find yet others to be sexually threatening and adopt nonsexual means of harassment towards them. There has been an absence of social science research on this topic. See generally Anne M. O'Leary-Kelly, Ramona L. Paetzold, & Ricky Griffin, Sexual Harassment as Aggressive Action: A New Frame-work for Understanding Sexual Harassment (1996) (noting dearth of research to explain psycho-logical mechanisms underlying sexual harassment)( unpublished manuscript, on file with Ramona L. Paetzold).
Also, I do not mean to imply that legal causation requires a showing of psychological moti-vation under Title VII; it does not. See supra note 73 and accompanying text. See Doe v. City of Belleville, No. 94-3699, 1997 U. S. App. LEXIS 17940, at *43-* 44 (7th Cir. July 17, 1997).
156. The EEOC guidelines indicate that sexual harassment occurs, inter alia, when unwel-come conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C. F. R. ¦ 1604.11( a)( 3) (1996). These guidelines have been cited approvingly by the U. S. Supreme Court in defining the nature of hostile environment claims. Meritor Sav. Bank v. Vinson, 477 U. S. 57, 65-66 (1986).
157. See supra note 27 and accompanying text.
158. Most sex discrimination claims (at least prior to the growth of hostile environment claims) have involved employer decisions alleged to be discriminatory. These decisions have involved human resources functions such as hiring, promotion, firing, and pay determinations, none of which is sexual in nature. See, e. g., UAW v. Johnson Controls, Inc., 499 U. S. 187 (1991) (involving sex discrimination in providing job opportunities); Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (involving sex discrimination in promotion); County of Washington v. Gunther, 452 U. S. 161 (1981) (involving sex discrimination in pay); Dothard v. Rawlinson, 433 U. S. 321 (1977) (involving sex discrimination in hiring).
159. The language of Title VII refers only to the sex of the individual who is alleging discrimination:
(2) to limit, segregate, or classify his [sic] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment op-portunities or otherwise adversely affect his [sic] status as an employee, because of such individual's . . . sex . . . .
42 U. S. C. ¦ 2000e-2( a) (1994).
160. See Id. The actors have sometimes been of the same sex in disparate treatment or im-pact claims. See, e. g., UAW v. Johnson Controls, Inc., 499 U. S. 187 (1991) (involving both male and female plaintiffs); Johnson v. Transportation Agency of Santa Clara County, 480 U. S. 616 (1987) (involving a male plaintiff complaining of sex discrimination in a male supervisor's hiring decision).
161. See, e. g., Johnson v. Transportation Agency of Santa Clara County, 480 U. S. 616 (1987) (involving a male's claim of reverse discrimination); Willingham v. Macon Tel. Publ'g Co., 507 F. 2d 1084 (5th Cir. 1975) (involving males' claims of discriminatory grooming codes).
162. In Meritor Sav. Bank v. Vinson, 477 U. S. 57 (1986), the Supreme Court held that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Id. at 66. The sexual nature of the conduct in most male-female hostile environment cases has made it easy for courts to conclude that the harassment is based on sex, without express discussion of the reasoning behind the causal linkage. The easiest case is when the sexual behavior is directed at the plaintiff, which "raise[ s] the inference that the harassment is based on . . . sex." Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522 (M. D. Fla. 1991). See also Andrews v. City of Philadelphia, 895 F. 2d 1469, 1485 (3d Cir. 1990); Drinkwater v. Union Carbide Corp., 904 F. 2d 853, 859-63 (3d Cir. 1990); Lipsett v. University of Puerto Rico, 864 F. 2d 228, 905 (1st Cir. 1988); Huddleston v. Roger Dean Chevrolet, Inc., 845 F. 2d 900, 904-05 (11th Cir. 1988). In fact, a court's reasoning, when offered, sometimes appears confused. For example, in Bennett v. Corroon & Black Corp., 845 F. 2d 104 (5th Cir. 1988), cert. denied, 489 U. S. 1020 (1989), the district court had found that any harassment occurring because of the posting of obscene cartoons bearing the female plain-tiff's name was not based on sex. The Fifth Circuit disagreed, stating:
Id. at 106. This language does not explain why the court sees the plaintiff's reaction as sex-based; instead, it appears to argue that her reaction is reasonable, which more clearly addresses the severity/ pervasiveness prong of the hostile environment test. See supra note 27 and accompany-ing text. The district courts have made similar leaps from "sexual" to "sex-based" in male-fe-male hostile environment cases. See, e. g., Shrout v. Black Clawson Co., 689 F. Supp. 774, 780-81 (S. D. Ohio 1988) (when it was "the common and accepted practice of male managers to make sexual remarks and jokes to female subordinates, this harassment [u] ndoubtedly based upon sex").
The automatic connection between sexual behavior and "based on sex" is also apparent in the Ninth Circuit's post-Meritor articulation of the elements for proving a hostile work environ-ment. In Jordan v. Clark, 847 F. 2d 1368 (9th Cir. 1988), cert. denied sub nom, Jordan v. Hodel, 488 U. S. 1006 (1989), the elements for determining whether a hostile environment exists were articulated as requiring the plaintiff to show
Id. at 1373. These elements were rearticulated in Ellison v. Brady, 924 F. 2d 872, 875-876 (9th Cir. 1991), which involved a male's delusional sexual obsession with the plaintiff. Thus, the Ninth Circuit has translated Title VII's "because of sex" language to mean sexual conduct, at least in the context of a male-female hostile environment claim. This articulation can be con-trasted with the more general statement of the elements in other circuits, where "because of sex" is the causal language. See, e. g., Paroline v. Unisys Corp., 879 F. 2d 100 (4th Cir. 1989); Swanson v. Elmhurst Chrysler Plymouth Inc., 882 F. 2d 1235 (7th Cir. 1989); Jones v. Wesco Investments, Inc., 846 F. 2d 1154 (8th Cir. 1988); Jones v. Flagship Int'l, 793 F. 2d 714 (5th Cir. 1986); High-lander v. KFC Nat'l Management Co., 805 F. 2d 644 (6th Cir. 1986).
Other courts have noted that the behavior need not be sexual in nature to give rise to a claim of a discriminatory hostile environment. These courts indicate that Title VII is implicated if the behavior is either of a sexual nature, or is nonsexual but otherwise sex-based. See, e. g., Andrews, 895 F. 2d at 1485-1486; Lipsett, 864 F. 2d at 905; Hicks v. Gates Rubber Co., 833 F. 2d 1406, 1415 (10th Cir. 1987); McKinney v. Dole, 765 F. 2d 1129, 1138 (D. C. Cir. 1985); Trotta v. Mobil Oil Corp., 788 F. Supp. 1336 (S. D. N. Y. 1992); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-1523 (M. D. Fla. 1991). This dichotomy obviously implies that behavior of a sexual nature is automatically sex-based, at least in male-female claims.
For determining that non-sexual behaviors are sex-based, courts in male-female cases rely on differenceÎ i. e., only persons of the plaintiff's sex were similarly subjected to the harassing conduct; members of the other sex were not. See, e. g., Andrews, 895 F. 2d at 1485; Tomkins v. Public Serv. Elec. & Gas Co., 568 F. 2d 1044, 1047 n. 4 (3d Cir. 1977) (stating that a female plain-tiff must show that she would not have been treated in the same manner if she had been male).
Sexual and non-sexual behaviors that disproportionately affect one sex can be found to be sex-based. See, e. g., Robinson, 760 F. Supp. at 1523 (describing pictures of nude women as fall-ing into this category).
Cases that have found no sex-based linkage in male-female cases have indicated that it is typically because the conduct (sexual or otherwise) was directed at, or was equally offensive to, both males and females. See, e. g., Weinsheimer v. Rockwell Int'l Corp. 754 F. Supp. 1559, 1565 (M. D. Fla. 1990), aff'd, 949 F. 2d 1162 (11th Cir. 1991).
163. Courts have identified behaviors directed at the plaintiff as evidencing intent. See, e. g., Robinson, 760 F. Supp. at 1522. Some behaviors are not directed at particular persons, but are associated with the work environment and tend to disproportionately affect one sex as being offensive or demeaning. See Id. at 1523.
164. See supra note 137.
165. See supra note 137.
166. See, e. g., Robinson, 760 F. Supp. at 1522 (noting that "sexual behavior directed at wo-men will raise the inference that the harassment is based on their sex"). See also supra note 137.
167. See, e. g., Antonia Abbey, Misconceptions of Friendly Behavior as Sexual Interest: A Sur-vey of Naturally Occurring Incidents, 11 PSYCHOL. WOMEN Q. 173 (1987); Robert E. Quinn & Patricia L. Lees, Attraction and Harassment: Dynamics of Sexual Politics in the Workplace, OR-GANIZATIONAL DYNAMICS , Autumn 1984, at 35; Sandra S. Tangri, Martha R. Burt, & Leanor B. Johnson, Sexual Harassment at Work: Three Explanatory Models, J. SOC. ISSUES, Vol. 38 No. 4 1982, at 33, 35-37 (basis for first model only-natural/ biological model).
168. See, e. g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987); CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979); Martha Chamallas, Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harassment Litigation, 1 TEX. J. WOMEN L. 95 (1992); Nancy S. Ehrenreich, Pluralist Myths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L. J. 1177 (1990); Louise F. Fitzgerald, Sexual Harassment: Violence against Women in the Workplace, 48 AM. PSYCHOL. 1070 (1993); Ramona L. Paetzold & Bill Shaw, A Postmodern Feminist View of "Reasonableness" in Hostile Environment Sexual Har-assment, 13 J. BUS. ETHICS 681 (1994).
169. These behaviors are commonly used in social science studies of sexual harassment. See supra note 141. See also, e. g., Douglas D. Baker, David E. Terpstra, & Kinley Larntz, The Influ-ence of Individual Characteristics and Severity of Harassing Behavior on Reactions to Sexual Harassment, 22 SEX ROLES 305 (1990); Douglas D. Baker, David E. Terpstra, & Bob D. Cutler, Perceptions of Sexual Harassment: A Re-examination of Gender Differences, 124 J. PSYCHOL. 409 (1990); Barbara A. Gutek, Bruce Morasch, & Aaron Groff Cohen, Interpreting Social-sexual Behavior in a Work Setting, 22 J. VOCATIONAL BEHAV. 30 (1983); David E. Terpstra & Douglas D. Baker, A Hierarchy of Sexual Harassment, 121 J. PSYCHOL. 599 (1987); David E. Terpstra & Douglas D. Baker, Psychological and Demographic Correlates of Perception of Sexual Harass-ment, 112 GENETIC SOC. & GEN. PSYCHOL. MONOGRAPHS 459 (1986).
170. See, e. g., Andrews v. City of Philadelphia, 895 F. 2d 1469 (3d Cir. 1990) (finding that disappearing case files, anonymous phone calls, and destruction of property, combined with sexual conduct, evidenced a hostile work environment); Hall v. Gus Constr. Co., 842 F. 2d 1010, 1014 (8th Cir. 1988) (noting that "[ i] ntimidation and hostility toward women because they are women can obviously result from conduct other than sexual advances"). Psychologists have described the fear underlying some males' hostility or need to dominate females as "heterosexual hostility." Peter Glick & Susan T. Fiske, Hostile and Benevolent Sex-ism, 21 PSYCHOL. WOMEN Q. 119, 122 (1997).
171. As the court said in Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805 (N. D. Ind. 1995), "The distinction [between relating to sex and relating to sexual behavior] makes little difference when dealing with male-on-female or female-on-male harassment; at least, it has typically been treated as one and the same." Id. at 807. Accord, Tietgen v. Brown's Westminster Motors, Inc., 921 F. Supp. 1495, 1501 (E. D. Va. 1996)( observing that "where a male employer subjects a wo-man to sexual touching, or to more harsh treatment than similarly situated males-the element of causation is self-evidently present"). See also supra note 137.
172. Heterosexism is defined as an ideological structure that assumes heterosexuality as the norm and homosexuality as deviant; it is supported by institutions such as systems of law. See Susan J. Wolfe, The Rhetoric of Heterosexism, in GENDER AND DISCOURSE: THE POWER OF TALK 199, 200 (Advances in Discourse Processes, Vol. XXX, Alexandra Dundas Todd & Sue Fisher eds. 1988).
173. Recall that I purposely use "different" to describe males and females. See supra note 16.
174. See supra note 137. I am not aware of a male-female hostile work environment case where heterosexuality was required to be proven.
175. See supra note 137.
176. 77 F. 3d 745 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996).
177. Id. at 752. Judge Niemeyer gave no clue as to what those other motivations would be.
179. The harasser may not be self-identified as homosexual, but presumably must be acting on homosexual urges. It would be easier for the plaintiff if there were a homosexual identity or a history of homosexual behavior on the part of the harasser. In Hopkins, the court noted that "merely suggestive" behavior was insufficient proof of homosexuality. See Id. at 752 citing Mc-Williams v. FairFax County Bd. of Supervisors, 72 F. 3d at 1195 n. 5. See also supra notes 51-52 and accompanying text.
180. If a court viewed "sexual orientation" as the cause of the harassment, the claim would be disallowed because Title VII does not protect individuals on the basis of sexual orientation. Hopkins, 77 F. 3d at 752.
181. It would seem clear that targets of "bisexual" persons are also selected on the basis of their biological sex. Just because a bisexual person is attracted to persons of both sexes does not mean that the selection of a particular target at a given point in time is not based on that target's sex.
182. See supra notes 57-64 and accompanying text. The Fourth Circuit clearly (and errone-ously) does not. See supra notes 38-56 and accompanying text.
183. 940 F. Supp. 1403 (E. D. Wis. 1996), aff'd 125 F. 3d 408 (7th Cir. 1997).
184. See Id. at 1411. The sexual orientation link was not seen either because the harasser also made similar remarks to at least one woman. And, the court noted, "[ E] ven if [the perpe-trator] were homosexual, his sexuality does not prove that his comments were directed toward Johnson because Johnson is a man." Id. The court suggested that the comments could have been made because of the perpetrator's insecurity or "meanness of spirit." Id.
185. 119 F. 3d 563 (7th Cir. 1997).
186. Johnson, 1997 U. S. App. LEXIS 22827 at *10-* 11.
187. Id. at *11.
188. Id. at *11 n. 5.
189. Id. at *11-* 12.
190. Id. at *13.
191. Courts do not inquire into why the particular woman was targeted for harassment. Courts have easily found that the unwelcome behaviors occurred because of the woman's sex, even when only one woman was targeted. See, e. g., Ellison v. Brady, 924 F. 2d 872 (9th Cir. 1991) (finding that a male's personal obsession with female coworker was because of her sex); Lipsett v. University of Puerto Rico, 864 F. 2d 881 (1st Cir. 1988) (holding that a woman targeted for sexual advances and commentary was harassed because of her sex); Bennett v. Corroon & Black Corp., 845 F. 2d 104 (5th Cir. 1988), cert. denied, 489 U. S. 1020 (1989) (finding that obscene cartoons ridiculing plaintiff were harassment based on her sex). (This discussion assumes that the harassment did not also target a man, so that there would be no complicating difference-related issues about causation.)
192. See, e. g., Shermer v. Illinois Dep't of Transp., 937 F. Supp. 781 (C. D. Ill. 1996).
193. See Id. at 784-85.
194. An irrational fear and hatred of homosexuality is homophobia. See Susan J. Wolfe, The Rhetoric of Heterosexism, in GENDER AND DISCOURSE: THE POWER OF TALK 199, 200 (Ad-vances in Discourse Processes, Vol. XXX, Alexandra Dundas Todd & Sue Fisher eds. 1988). The hostility could also be directed at persons perceived to be gay or lesbian. If both gays and lesbi-ans are targeted, however, this does not necessarily mean that the harassment is not sex-based. The particular ways in which males and females are targeted may differ, or the implications for them may differ, rendering the harassment sex-based. See supra note 101.
195. This would be true also if the harassment stemmed from sexual attraction. In either case, the target would be chosen based on sex, not sexual orientation. See supra note 155 and accompanying text. See also infra notes 166-167 and accompanying text.
196. It is obvious that not all women in a workplace need to be subject to harassment in order for the plaintiffs to have an actionable claim. See supra notes 136, 161 and accompanying text.
197. Of course, in order to be actionable under Title VII the remaining elements of the hostile environment claim would need to be satisfied. See supra note 27 and accompanying text.
This example demonstrates that even nonsexual conduct directed at the plaintiff should also be presumed to be sex-based in same-sex cases to the extent that it is in male-female cases. Although my focus in this article is on behaviors of a sexual nature, all directed behaviors that may be generated from a hostility toward, or desire to dominate, one sex should be understood to be sex-based, regardless of the sexual orientation of the plaintiff/ target. For example, a male supervisor who repeatedly refers to a particular male subordinate as a "fag" (which is arguably nonsexualized language) should be presumed to be engaging in sex-based behavior, absent evi-dence to the contrary.
198. 937 F. Supp. 781 (C. D. Ill. 1996).
199. See Id. at 784-85.
200. 887 F. Supp. 1178 (N. D. Ind. 1995).
201. See Id. at 1181, n. 2.
202. Doe v. City of Belleville, No. 94-3699, 1997 U. S. App. LEXIS 17940 (7th Cir. July 17, 1997). Quick v. Donaldson Co. Inc., 90 F. 3d 1372 (8th Cir. 1996). See supra notes 59-64 and accompanying text.
203. And the court indicated that, at least when considered at the summary judgment stage, males need only be the primary (and not necessarily exclusive) targets of the behavior. See
Quick, 90 F. 3d at 1378.
204. For example, use of sexually-oriented language in general or sexually-oriented displays
(such as photos, cartoons, magazines) in the workplace create an environment that is often un-comfortable for some persons in the workplace. In Robinson v. Jacksonville Shipyards, Inc., 760
F. Supp. 1486 (M. D. Fla. 1991), the court noted that such behavior can, for example, "create[ ] a barrier to the progress of women in the workplace because it conveys the message that they do
not belong, that they are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment." Id. at 1523.
205. See Id. at 1522-23.
206. Even in Robinson, 760 F. Supp. 1486, where the court noted that uncomfortable sexual
stereotypes may present a barrier to women in the workplace, the court did not expressly note the heterosexual nature of these stereotypes.
207. See supra notes 99-106 and accompanying text. See also supra notes 178-186 and accom-panying text.
208. 876 F. Supp. 1169 (D. Nev. 1995).
209. See Id. at 1175. This juxtaposition by the court appears to correlate heterosexual sexual
orientation with sexuality "in general," rendering homosexual sexual orientation as a deviant, exceptional, "other." This is precisely what is meant by heterosexism. See supra note 147.
210. These idiosyncratic reactions could have stemmed from their own homophobia, the court noted. See Id. at 1175 n. 6.
211. 905 F. Supp. 1368 (C. D. Cal. 1995), rev'd on other grounds, 114 F. 3d 979 (9th Cir. 1997).
212. See Id. at 1383.
213. See Id. at 1384. The court appeared to use a reasonableness standard even for this prong of the test: "To the extent that a reasonable woman would find the female-dominated atmos-phere
. . . to be hostile or abusive, she could not reasonably conclude that it was so because it discriminated against her as a woman." Id.
214. See supra note 137.
215. I do not intend to defend male reactions that are homophobic, only to indicate they are sex-based. Whether they are reasonable implicates another element of the hostile environment
test, the severity/ pervasiveness element. See supra note 27. See also infra note 196 and accom-panying text.
216. This sexual behavior was clearly directed at the plaintiffs, and should have supported an inference of sex-based harassment. See supra notes 139-174 and accompanying text.
217. See Fox, 876 F. Supp. at 1175.
218. Id. at 1176.
219. Easton, 905 F. Supp. at 1383.
220. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE
(1975); RICHARD J. GELLES, FAMILY VIOLENCE (1987); MARY P. KOSS ET AL., MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK, AND IN THE COMMUNITY (1994); Nadine Taub & Eliza-beth
M. Schneider, Women's Subordination and the Role of Law, in FEMINIST LEGAL THEORY: FOUNDATIONS (D. Kelly Weisberg ed. 1993).
221. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975).
222. See Fox, 876 F. Supp. at 1176 (noting that depictions relating to homosexual conduct do not "inherently" insult or intimidate men).
223. See Id. n. 9.
224. Although the Fox court was aware of this aspect of homosexual pornography, it saw a distinction between it and "traditional, male point-of-view oriented heterosexual pornography."
Id. The court, looking through its heterosexist lens, could not find a "subjugated class" in male homosexual pornography. Id. Clearly, however, the sex of the other in gay-or lesbian-oriented
pornography is readily known and predictable. For a discussion of homosexual pornography, see, e. g., LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN
LIFE IN TWENTIETH-CENTURY AMERICA 252-260 (1991) (discussing lesbian pornography and sadomasochistic practices); Rick Houlberg, The Magazine of a Sadomasochism Club: The Tie
That Binds, J. HOMOSEXUALITY Vol. 21 No. 1/ 2 1991, at 167.
Lesbians and gays also engage in same-sex violence, which could be threatening to persons because of their sex. See, e. g., Denise Bricker, Note, Ruthann Robinson, Lavender Bruises: In-tra-Lesbian
Violence, Law and Lesbian Legal Theory, 20 GOLDEN GATE U. L. REV. 567 (1990); Fatal Defense: An Analysis of Battered Woman's Syndrome Expert Testimony for Gay Men and
Lesbians who Kill Abusive Partners, 58 BROOK. L. REV. 1379 (1993).
225. See supra note 27 and accompanying text.
226. 805 F. 2d 611 (6th Cir. 1986), cert. denied, 481 U. S. 1041 (1987), aborgated by Harris Forklift Sys., Inc., 510 U. S. 17 (1993).
227. Id. at 622.
228. See Id.
229. See, e. g., Ellison v. Brady, 924 F. 2d 872, 877-878 (9th Cir. 1991); Ramona L. Paetzold & Anne M. O'Leary-Kelly, Hostile Environment Sexual Harassment in the United States: Post-Mer-itor
Developments and Implications, 1 GENDER, WORK, ORGS. 50, 53 (1994).
204. For example, use of sexually-oriented language in general or sexually-oriented displays (such as photos, cartoons, magazines) in the workplace create an environment that is often un-comfortable for some persons in the workplace. In Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M. D. Fla. 1991), the court noted that such behavior can, for example, "create[ ] a barrier to the progress of women in the workplace because it conveys the message that they do not belong, that they are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment." Id. at 1523.
205. See Id. at 1522-23.
206. Even in Robinson, 760 F. Supp. 1486, where the court noted that uncomfortable sexual stereotypes may present a barrier to women in the workplace, the court did not expressly note the heterosexual nature of these stereotypes.
207. See supra notes 99-106 and accompanying text. See also supra notes 178-186 and accom-panying text.
208. 876 F. Supp. 1169 (D. Nev. 1995).
209. See Id. at 1175. This juxtaposition by the court appears to correlate heterosexual sexual orientation with sexuality "in general," rendering homosexual sexual orientation as a deviant, exceptional, "other." This is precisely what is meant by heterosexism. See supra note 147.
210. These idiosyncratic reactions could have stemmed from their own homophobia, the court noted. See Id. at 1175 n. 6.
211. 905 F. Supp. 1368 (C. D. Cal. 1995), rev'd on other grounds, 114 F. 3d 979 (9th Cir. 1997).
212. See Id. at 1383.
213. See Id. at 1384. The court appeared to use a reasonableness standard even for this prong of the test: "To the extent that a reasonable woman would find the female-dominated atmos-phere . . . to be hostile or abusive, she could not reasonably conclude that it was so because it discriminated against her as a woman." Id.
214. See supra note 137.
215. I do not intend to defend male reactions that are homophobic, only to indicate they are sex-based. Whether they are reasonable implicates another element of the hostile environment test, the severity/ pervasiveness element. See supra note 27. See also infra note 196 and accom-panying text.
216. This sexual behavior was clearly directed at the plaintiffs, and should have supported an inference of sex-based harassment. See supra notes 139-174 and accompanying text.
217. See Fox, 876 F. Supp. at 1175.
218. Id. at 1176.
219. Easton, 905 F. Supp. at 1383.
220. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975); RICHARD J. GELLES, FAMILY VIOLENCE (1987); MARY P. KOSS ET AL., MALE VIOLENCE AGAINST WOMEN AT HOME, AT WORK, AND IN THE COMMUNITY (1994); Nadine Taub & Eliza-beth M. Schneider, Women's Subordination and the Role of Law, in FEMINIST LEGAL THEORY: FOUNDATIONS (D. Kelly Weisberg ed. 1993).
221. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975).
222. See Fox, 876 F. Supp. at 1176 (noting that depictions relating to homosexual conduct do not "inherently" insult or intimidate men).
223. See Id. n. 9.
224. Although the Fox court was aware of this aspect of homosexual pornography, it saw a distinction between it and "traditional, male point-of-view oriented heterosexual pornography." Id. The court, looking through its heterosexist lens, could not find a "subjugated class" in male homosexual pornography. Id. Clearly, however, the sex of the other in gay-or lesbian-oriented pornography is readily known and predictable. For a discussion of homosexual pornography, see, e. g., LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA 252-260 (1991) (discussing lesbian pornography and sadomasochistic practices); Rick Houlberg, The Magazine of a Sadomasochism Club: The Tie That Binds, J. HOMOSEXUALITY Vol. 21 No. 1/ 2 1991, at 167.
Lesbians and gays also engage in same-sex violence, which could be threatening to persons because of their sex. See, e. g., Denise Bricker, Note, Ruthann Robinson, Lavender Bruises: In-tra-Lesbian Violence, Law and Lesbian Legal Theory, 20 GOLDEN GATE U. L. REV. 567 (1990); Fatal Defense: An Analysis of Battered Woman's Syndrome Expert Testimony for Gay Men and Lesbians who Kill Abusive Partners, 58 BROOK. L. REV. 1379 (1993).
225. See supra note 27 and accompanying text.
226. 805 F. 2d 611 (6th Cir. 1986), cert. denied, 481 U. S. 1041 (1987), aborgated by Harris Forklift Sys., Inc., 510 U. S. 17 (1993).
227. Id. at 622.
228. See Id.
229. See, e. g., Ellison v. Brady, 924 F. 2d 872, 877-878 (9th Cir. 1991); Ramona L. Paetzold & Anne M. O'Leary-Kelly, Hostile Environment Sexual Harassment in the United States: Post-Mer-itor Developments and Implications, 1 GENDER, WORK, ORGS. 50, 53 (1994).
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