ILANA DIAMOND ROVNER, Circuit Judge.
Twin brothers J. and H. Doe
For purposes of summary judgment, the city has not disputed the plaintiffs' account of what occurred during their employment. We are, in any event, bound to credit the plaintiffs' version of events at this juncture. Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 656 (7th Cir.1991) (en banc). We therefore accept the following facts as true.
J. and H. Doe were sixteen years old when they were hired by the City of Belleville in 1992 to cut weeds and grass in the municipal cemetery. From the first, both young men were subjected to a relentless campaign of harassment by their male coworkers. For the ostensible purpose of differentiating between the brothers, the other men (all of whom were significantly older than the plaintiffs) nicknamed J., who apparently was overweight, the "fat boy" and dubbed H., who wore an earring, the "fag" or the "queer."
For the most part, the co-workers spared J. from these sorts of taunts, content to deride him as the "fat boy." One day, however, after H. contracted a case of poison ivy on his arms, chest, and crotch, Dawe inquired of J. in graphic terms whether H. had passed along his own case of poison ivy to J. through anal sex. Before J. could respond, Goodwin and Harris chimed in that if that were the case, then Dawe must have contracted a rash as well, since he was always taking H. "out to the woods."
The verbal taunting of H. turned physical one day when Harris, noting that H. was in ill humor, told Dawe that his "bitch" appeared to be grumpy and urged Dawe to do something about it. Dawe, who had just returned from a lunch that included a few drinks at a local tavern, walked toward H. saying, "I'm going to finally find out if you are a girl or a guy." H. stepped backward in an attempt to avoid Dawe, but found himself trapped against a wall. Dawe proceeded to grab H. by the testicles and, having done so, announced to the assemblage of co-workers present, "Well, I guess he's a guy." In his deposition, H. testified that following this episode he came to believe that Dawe was actually willing and able to take him out to the woods and sexually assault him.
Following the crotch-grabbing incident, both brothers decided they had had enough and resolved to quit their jobs before the end of the summer. They did not disclose any of these events to their parents, although they did reveal their desire to resign. Their parents suggested that if they did not like their jobs, they should at least give their employer two weeks' notice; hence, the following day, they told Goodwin they would be leaving in a fortnight. The Does did not disclose their actual reason for quitting; instead, fearing reprisals and further taunting if that reason were known, H. and J. concocted a story that they had gotten into some sort of trouble at home and that their father was sending them away to Oklahoma as punishment. But the Does confided in friend and fellow city employee Bonnie Boeving that they really were leaving because of the constant taunting to which they had been subjected on the job; and prior to their intended date of departure, the Does' co-workers learned through the grapevine that the Does were not bound for Oklahoma. Having discovered the deception, their co-workers subjected the Does to even more abuse, culminating in a firecracker being thrown near H., where it exploded. With two days left in their final two weeks of employment, H. and J. immediately left work and never returned.
After filing charges with the EEOC and receiving their right-to-sue letters, the Does filed suit against Belleville claiming that they had been sexually harassed and ultimately (based on the firecracker incident) discharged constructively in retaliation for protesting their mistreatment to Boeving, in violation of Title VII. They further alleged that the harassment amounted to intentional sex discrimination in violation of the Fourteenth Amendment's Equal Protection Clause.
The district court granted summary judgment in favor of the city on all of the plaintiffs' claims. In the court's view, the plaintiffs had not come forward with evidence
Order at 3-4; see Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir.1984) ("Congress manifested an intention to exclude homosexuals from Title VII coverage."), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985). Moreover, the court noted, the evidence suggested that neither plaintiff had construed the actions of his co-workers as sexual harassment, for when asked at their depositions whether their co-workers had "made a sexual advance" toward either of them, "asked for sexual favors," asked to "have sex" with them, or had physical contact with them "of a sexual nature," both J. and H. had responded "no." E.g., H. Dep. 29; J. Dep. 40; see Order at 4-5. Because the evidence was thus insufficient to establish sexual harassment cognizable under Title VII, the court reasoned, there could be no viable claim for retaliation, nor could there be a Fourteenth Amendment claim that the plaintiffs were deprived of equal protection. Order at 5-6.
This case was decided below on summary judgment, which is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's decision de novo, of course (e.g., Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1254 (7th Cir.1997)), construing the evidence and any inferences that reasonably may be drawn from it in the light most favorable to the parties opposing summary judgment, in this case J. and H. Doe (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). If, upon review of the record, we find that a reasonable factfinder might find in favor of the Does, then we must reverse the grant of summary judgment and remand for trial. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1283 (7th Cir. 1996).
We conclude that H. Doe is entitled to a trial on his Title VII and Fourteenth Amendment claims of sexual harassment. On any given work day, H. was faced with the prospect of having his gender questioned ("Are you a boy or a girl?"), having a co-worker, Jeff Dawe, repeat his threat to assault H. sexually ("I'm going to take you out in the woods and give it to you up your ass"), often with the encouragement of others (who urged Dawe to "get a piece of that young ass" and asked if H. was "tight or loose" and "would he scream or what?"), and, ultimately, having his testicles grabbed in a proclaimed effort to determine once and for all whether he was male or female ("Well, I guess he's a guy."). If H. were a woman, no court would have any difficulty construing such abusive conduct as sexual harassment. And if the harassment were triggered by that woman's decision to wear overalls and a flannel shirt to work, for example — something her harassers might perceive to be masculine just as they apparently perceived H.'s decision to wear an earring to be feminine — the court would have all the confirmation that it needed that the harassment indeed amounted to discrimination on the basis of sex.
Our focus throughout this opinion largely will be on H., rather than J. Doe. The harassment to which the parties have devoted most of their attention is the conduct targeted specifically at him, and we believe it is that harassment that most vividly illustrates why same-sex harassment is actionable as sex discrimination. Like his brother, J. was the object of considerable harassment himself. The sexual nature of this harassment is less evident from the record before us than the harassment that H. Doe endured. Yet, the parties and the district court alike have addressed the Does' claims collectively, and the city in particular has made no meaningful effort to distinguish J. Doe's claims from his brother's. J. Doe is therefore entitled to a trial on his statutory and constitutional claims of sex discrimination as well.
We affirm the entry of summary judgment on the Does' Title VII retaliation claim, however. The evidence does not suggest that the brothers' coworkers drove them from their jobs because they had complained of their mistreatment to another city employee.
Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). In 1986, the Supreme Court held for the first time 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." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). The Court embraced the Equal Employment Opportunity Commission's position that "sexual harassment," described as "`[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature'" (id. at 65, 106 S.Ct. at 2404, quoting 29 C.F.R. § 1604.11(a) (1985)), constitutes a form of sex discrimination (id. at 66-67, 106 S.Ct. at 2405). It also rejected the notion that such harassment must be linked to an economic quid pro quo in order to be actionable. Id. at 64-65, 106 S.Ct. at 2404-05. So long as the harassment complained of is sufficiently severe or pervasive "`to alter the conditions of [the victim's] employment and create an abusive working environment,'" it affects a "term, condition, or privilege" of employment and thus runs afoul of the statute. Id. at 67, 106 S.Ct. at 2405 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Harassment based on race, religion, and national origin had been recognized as the basis for Title VII "hostile environment" claims, the Court noted; so too should harassment based on sex. Id. at 66, 106 S.Ct. at 2405. "`Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.'" Id. at 67, 106 S.Ct. at 2405 (quoting Henson, 682 F.2d at 902). More recently, in Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Court reaffirmed its holding in Meritor and clarified that a plaintiff need not prove a psychological injury in order to recover for sexual harassment in the workplace; "[s]o long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." Id. at 22, 114 S.Ct. at 371 (citation omitted).
Given that sexual harassment is actionable under Title VII as a form of sex discrimination, courts typically speak of the threshold question presented by a sexual harassment claim as being whether the plaintiff was harassed "because of" her sex. See Harris, 510 U.S. at 22, 114 S.Ct. at 371 ("Title VII's broad rule of workplace equality" is offended when "the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion or national origin") (emphasis supplied); Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 517 (7th Cir.1996); Carr v. Allison Gas
The requirement of a nexus between the harassment and the plaintiff's gender gives rise to two questions that we confront here. First, as a matter of law, can a man ever establish that he was harassed "because of" his sex in violation of Title VII, when the harassment he complains of was inflicted by another man? The district court, citing the Fifth Circuit's opinion in Garcia v. Elf Atochem North America, 28 F.3d 446, 451-52 (5th Cir.1994), suggested not (Order at 4), and Belleville likewise relies on Garcia to argue that same-sex sexual harassment is not actionable under Title VII as a matter of law. Second, if sexual harassment of a male by another male is actionable under Title VII, must the plaintiff offer proof, beyond the explicitly sexual nature of the harassment, that his gender motivated the harasser and that a similarly situated female worker would not have been harassed? In particular, must the plaintiff prove that his harasser was sexually oriented toward the same gender?
A. Does Title VII reach same-sex harassment?
Of course, "[t]he lion's share of sexual harassment situations features the man as the harasser and the woman as the harassee." Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1353 (7th Cir. 1995); see also Martha Chamallas, Essay, Writing About Sexual Harassment: A Guide to the Literature, 4 U.C.L.A. WOMEN'S L.J. 37, 38 n. 3 (1993) (discussing EEOC statistics); Susan Perissinotto Woodhouse, Comment, Same-Gender Sexual Harassment: Is It Sex Discrimination Under Title VII?, 36 SANTA CLARA L.REV. 1147, 1148 (1996) (same). But Title VII on its face draws no distinction between men and women, either as plaintiffs or harassers, and the EEOC describes sexual harassment in gender-neutral terms.
A minority of courts nonetheless have concluded that a man harassed by another man has no claim under Title VII, regardless of the scenario. The only appellate court to so hold is the Fifth Circuit. Garcia v. Elf Atochem, N.A., supra, 28 F.3d at 451-52, followed as binding precedent by Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118 (5th Cir.1996), cert. granted, ___ U.S. ___, 117 S.Ct. 2430, 138 L.Ed.2d 192 (1997). Garcia, unfortunately, is rather cryptic about the reasons for its holding. Quoting from a prior, unpublished order of the Fifth Circuit, the court merely proclaims: "`Harassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination.'" 28 F.3d at 451-52 (quoting Giddens v. Shell Oil Co., No. 92-8533, 12 F.3d 208 (5th Cir. Dec.6, 1993) (unpublished), cert. denied, 513 U.S. 925, 115 S.Ct. 311, 130 L.Ed.2d 274 (1994)). The court did, however, cite with approval Judge Williams' opinion in Goluszek v. H.P. Smith, 697 F.Supp. 1452 (N.D.Ill.1988), which is the leading case in this school of thought.
The plaintiff in Goluszek was an unmarried male worker who came from an "unsophisticated background," had led an "isolated existence" with "little or no sexual experience," and "blushe[d] easily." His male co-workers urged him incessantly in graphic terms to get married or allow himself to be "fixed up" with women so that he might have sex, showed him pictures of nude women, accused him of being gay or bisexual, and poked him in the buttocks with a stick. The evidence suggested that although his employer took seriously allegations that a female employee had been harassed, its response to Goluszek's complaints was lackadaisical and ineffective. Nonetheless, the court concluded that "the defendant's conduct was not the type of conduct Congress intended to sanction when it enacted Title VII." Id. at 1456.
697 F.Supp. at 1456. Goluszek, the court pointed out, "was a male in a male-dominated environment," and the harassment of which he complained was perpetrated by other men. Id. Consequently, the notion that he might have worked in an environment that treated men as inferior was simply implausible.
Although we agree with Goluszek that the historic imbalance of power between men and women in the workplace offers a very compelling reason why the sexual harassment of a woman by a male superior or co-worker should be understood as sex discrimination,
As for congressional intent, the legislative history suggests that legislators had very little preconceived notion of what types of sex discrimination they were dealing with when they enacted Title VII. We noted in Ulane v. Eastern Airlines, supra, that sex was added to the list of prohibited grounds of discrimination by a congressional opponent at the last moment in the hopes that it would dissuade his colleagues from approving the bill; it did not. 742 F.2d at 1085; see also Meritor, 477 U.S. at 63-64, 106 S.Ct. at 2404; Christopher W. Deering, Comment, Same-Gender Sexual Harassment: A Need to Re-examine the Legal Underpinnings of Title VII's Ban on Discrimination "Because Of" Sex, 27 CUMB. L.REV. 231, 268-69 (1996-97). Against this backdrop, we were confident that Congress had nothing more than the traditional notion of "sex" in mind when it voted to outlaw sex discrimination, and that discrimination on the basis of sexual orientation and transsexualism, for example, did not fall within the purview of Title VII. Ulane, 742 F.2d at 1085-86. But to attribute to Congress an intent solely to strike at sexual harassment reflecting the historic exploitation of women by their male co-workers reads far too much into a legislative history that amounts to little more than a last-ditch effort to scuttle the entire statute. Moreover, the degree to which Congress was concerned with the barriers to equality that women encounter in the workplace "does not create `a negative inference' limiting the scope of the Act to the specific problem that motivated its enactment." Newport News
It is, ultimately, the plain, unambiguous language of the statute upon which we must focus. E.g., Reves v. Ernst & Young, 507 U.S. 170, 177, 113 S.Ct. 1163, 1169, 122 L.Ed.2d 525 (1993) ("If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.") (internal quotation marks and citations omitted); Time Warner Cable v. Doyle, 66 F.3d 867, 876 (7th Cir. 1995) ("the plain language of the statute is the most reliable indicator of congressional intent"), cert. denied, ___ U.S. ___, 116 S.Ct. 974, 133 L.Ed.2d 894 (1996). There is no ambiguity here. As we noted at the outset of this discussion, the words of Title VII suggest that anyone discriminated against "because of" such individual's sex may bring suit, regardless of his gender or that of his harasser. The facial breadth of the statute has led our colleagues in the Fourth, the Sixth, the Eighth, and the Eleventh Circuits, and in district courts within and without this Circuit to conclude that same-sex harassment claims are viable under Title VII. Wrightson v. Pizza Hut of America, Inc., supra, 99 F.3d at 141-43; Yeary v. Goodwill Indus. Knoxville, Inc., 107 F.3d at 447-48; Quick v. Donaldson Co., supra, 90 F.3d at 1376-80;
We therefore reject the narrow construction of Title VII advanced by Goluszek, Garcia, and their progeny. Unless we read into the statute limitations that have no foundation in the broad, gender-neutral language that Congress employed, it is evident that anyone sexually harassed can pursue a claim under Title VII, no matter what her gender or that of her harasser.
B. What evidence is required to show that same-sex harassment has occurred "because of" the plaintiff's sex?
Title VII bars an employer from discriminating against an employee because of her sex (42 U.S.C. § 2000e-2(a)(1)), and thus, as we noted above, courts typically require a plaintiff complaining of sex discrimination, including sexual harassment, to demonstrate that the discrimination occurred "because of" her gender. E.g., Pasqua, 101 F.3d at 517. This requirement has not detained courts long in cases of opposite-sex harassment; it is generally taken as a given that when a female employee is harassed in explicitly sexual ways by a male worker or workers, she has been discriminated against "because of" her sex. E.g., Horn v. Duke Homes, supra, 755 F.2d at 604. But courts by and large have been unwilling to make the same assumption when a man harasses another man
One may reasonably infer from the evidence before us that H. Doe was harassed "because of" his gender. If that cannot be inferred from the sexual character of the harassment itself, it can be inferred from the harassers' evident belief that in wearing an earring, H. Doe did not conform to male standards. Thus the repeated inquiries as to whether he was "a guy or a girl," for example. The fact that none of the harassers is gay does not defeat the claim of sexual harassment, as the district court believed. Although we have no quarrel with the notion that same-sex, sexual harassment perpetrated by a gay or lesbian individual amounts to sex discrimination, we do not agree that same-sex, sexual harassment is actionable under Title VII only when the harasser is sexually oriented toward members of his or her own gender. We have never made the viability of sexual harassment claims dependent upon the sexual orientation of the harasser, and we are convinced that it would be both unwise and improper to begin doing so. Fears that if such a requirement is not imposed, commonplace "horseplay" will give rise to sexual harassment claims are, we believe, unfounded. Sexual harassment law already provides the means for distinguishing between isolated instances of non-severe harassment and the truly hostile working environment.
The divergent answers courts have given to the question of when same-sex harassment constitutes sex discrimination necessitates that we spend some time addressing each of these points below. But we do not wish the length of our analysis to detract from what we believe to be the straightforward nature of this case. As we observed at the outset, if H. were a woman, there would be no agonizing over whether the harassment the plaintiffs have described could be understood as sex discrimination. The happenstance that he is instead male should not make for an entirely different analysis, particularly for purposes of a statute that forbids sex discrimination.
The need for proof that the plaintiff was targeted for harassment because of his gender is evident in cases where the harassment is not explicitly sexual (the type of harassment the EEOC cites in its guideline (see n. 3, supra)), but is gender-based nevertheless. Harassment can obviously take many forms, and although mere profanity, "shoptalk," and other manifestations of "general unpleasantness" in the workplace typically will not by themselves support a Title VII claim (Carr, 32 F.3d at 1009, 1010), harassment lacking in sexual overtones may nonetheless support a claim for sex discrimination when it is visited upon workers of one gender but not the other. This is typically referred to as "gender harassment." See 3 Lex K. Larson, EMPLOYMENT DISCRIMINATION § 46.01 (2d ed.1995). Thus, "any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII" (McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir.1985) (emphasis supplied); see also Carson, 82 F.3d at 158-59); and hostile environment claims are "in no way limited ... to intimidation or ridicule of an explicitly sexual nature" (Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir.1990)). See also Carr, 32 F.3d at 1010; Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.1993); Hall v. Gus Construction Co., 842 F.2d 1010, 1014 (8th Cir.1988); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987); Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497, 1503 (11th Cir.1985); Curde v. Xytel Corp., 912 F.Supp. 335, 340 (N.D.Ill.1995). A woman
It is not clear why such proof is needed when the harassment has explicit sexual overtones, however. Arguably, the content of that harassment in and of itself demonstrates the nexus to the plaintiff's gender that Title VII requires. Thus, the Third Circuit has remarked that "[t]he intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course." Andrews, 895 F.2d at 1482 n. 3; see also Nichols v. Frank, 42 F.3d 503, 511 (9th Cir.1994) (opinion of Reinhardt, J.) ("[S]exual harassment is ordinarily based on sex. What else could it be based on?") (emphasis in original); Jones v. Flagship Int'l, 793 F.2d 714, 720 n. 5 (5th Cir.1986) ("Except in the exceedingly atypical case of a bisexual supervisor, it should be clear that sexual harassment is discrimination based on sex."), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987) (quoting Henson v. City of Dundee, supra, 682 F.2d at 905 n. 11); Jones v. Aspin, 64 Empl. Prac. Dec. para. 43,005, 1994 WL 88988, at *1 n. 1 (E.D.Pa. Mar. 1, 1994); Frey v. Pennsylvania Airlines, 859 F.Supp. 137, 144 (M.D.Pa.1992); Cline, 748 F.Supp. at 654. And as the district court observed in Cline:
Id.; accord Katz v. Dole, 709 F.2d 251, 255 (4th Cir.1983) ("In cases involving claims of sexual harassment, ... the sexual advance or insult almost always will represent `an intentional assault on an individual's innermost privacy.' Therefore, once the plaintiff in such a case proves that harassment took place, the most difficult legal question typically will concern the responsibility of the employer for the harassment.") (quoting Bundy v. Jackson, supra, 641 F.2d at 945); see also Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir.1996) (reasonable jury could find that intent to discriminate is implicit in use of racial code words) (citing, inter alia, Futrell v. J.I. Case, 38 F.3d 342, 347 (7th Cir.1994) (age bias could be inferred from remarks that company needed "sharp young people" and that plaintiff was not a "forward enough thinker")); Vore, 32 F.3d at 1164 (racially hostile remarks, graffiti, and other conduct are indicative of "obvious" animus). This view is consistent with the EEOC's guideline, which does not focus on whether the harasser singled out the victim on the basis of her gender, but instead provides simply that "verbal or physical conduct of a sexual nature constitute[s] sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." 29 C.F.R. § 1604.11(a) (quoted in full at n. 3, supra).
The harassment of which H. Doe complains, although certainly disagreeable, does not fall into the category of "general unpleasantness" or generic "shoptalk." It was targeted specifically at H. and it was explicitly sexual — it both revolved around his gender and specifically alluded to sexual conduct. From his first day at work, H. was repeatedly
But some cases can be read to suggest that even the explicitly sexual nature of the harassment is not enough to establish that the harassment was discriminatory for purposes of Title VII. Sexual harassment traditionally has been explained as sex discrimination by pointing out that the harassed plaintiff is subjected to treatment that members of the other gender are not. See, e.g., Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 ("`Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.'") (quoting Henson, 682 F.2d at 902) (emphasis supplied); Harris, 510 U.S. at 25, 114 S.Ct. at 372 (Ginsburg, J., concurring) ("The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."); Rabidue v. Osceola Refining Co., Div. of Texas-American Petrochemicals, Inc., 805 F.2d 611, 620 (6th Cir.1986) ("to prove a claim of abusive work environment premised on sexual harassment, a plaintiff must demonstrate that she would not have been the object of harassment but for her sex"), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987); Henson, 682 F.2d at 904 ("In proving a claim for a hostile work environment due to sexual harassment ..., the plaintiff must show that but for the fact of her sex, she would not have been the object of harassment"); Bundy, 641 F.2d at 942 n. 7 ("the question is one of but-for causation: would the complaining employee have suffered the harassment had he or she been of a different gender"); Blozis, 896 F.Supp. at 806-07. The familiar notion is thus that a woman sexually harassed by a man may claim discrimination under Title VII because the harasser is, presumably, heterosexual and would not have bothered her if she were a man. See, e.g., Horn, 755 F.2d at 604 ("But for Horn's womanhood, [her supervisor] would not have demanded sex as a condition of employment."). In the same way, a gay man who sexually harasses a male co-worker "discriminates" because he presumably has no interest in treating a female coworker in the same way. See Barnes, 561 F.2d at 990 & n. 55; Peric, 1996 WL 515175, at *3; Raney, 892 F.Supp. at 288; Nogueras, 890 F.Supp. at 63; Walden Book Co., 885 F.Supp. at 1103-04; Prescott, 878 F.Supp. at 1550-51; Joyner, 597 F.Supp. at 542; Wright, 511 F.Supp. at 309-10.
Yet, we must question whether it is appropriate to view sexual harassment as actionable sex discrimination only when the plaintiff is able to show that she was harassed because she was a woman rather than a man, or vice versa. Proof that the harasser was motivated to target (or in practice did target) one gender and not the other may be necessary
When the harasser sets out to harass a female employee using names, threats, and physical contact that are unmistakably gender-based, he ensures that the work environment becomes hostile to her as a woman — in other words, that the workplace is hostile to her "because of" her sex. Regardless of why the harasser has targeted the woman, her gender has become inextricably intertwined with the harassment. Likewise, when a woman's breasts are grabbed or when her buttocks are pinched, the harassment necessarily is linked to her gender. See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 861 n. 15 (3d Cir.1990) ("`[w]omen's sexuality largely defines women as women in this society, so violations of it are abuses of women as women'") (quoting Catherine A. MacKinnon, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 174 (1979)). It would not seem to matter that the harasser might simultaneously be harassing a male co-worker with comparable epithets and comparable physical molestation. When a male employee's testicles are grabbed, his torment might be comparable, but the point is that he experiences that harassment as a man, not just as a worker, and she as a woman. In each case, the victim's gender not only supplies the lexicon of the harassment, it affects how he or she will experience that harassment; and in anything short of a truly unisex society, men's and women's experiences will be different.
Looked at in another light, the explicitly sexual harassment of a female worker amounts to sex discrimination in violation of Title VII not simply because her harasser might be heterosexual, and thus would not be sexually interested in a man, and not simply because a man might not encounter comparable harassment in the workplace, but because her employment is now conditioned upon her willingness to endure harassment that is inseparable from her gender. See Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson v. City of Dundee, supra, 682 F.2d at 902); Drinkwater v. Union Carbide Corp., supra, 904 F.2d at 859-60. When she is taunted day after day in sexual terms, told she will be taken into a back room for sexual purposes, and has her breasts grabbed to determine whether she is "a boy or a girl," she is no longer an employee but a sexual object, judged not by how well she does her job but by how she measures against the sexual standards of her co-workers. Id. at 861 n. 15. From her point of view, and from the perspective of any reasonable person, the harasser's motives are immaterial. Perhaps the harasser is sexually attracted to her, perhaps he just wants her job and figures that harassing her sexually would be the most effective way of driving her from it; either way, the environment is hostile, and the hostility is inescapably and irrevocably linked to her gender.
The same is true of racial harassment, for example. If an African American is repeatedly subjected to racial slurs and talk of lynching by his co-workers, we typically do not ask, "But was he singled out because of his race?" See, e.g., Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir.1991); Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417 (7th Cir.1986). Perhaps intuitively, we understand that the harassment, perpetrated through the vehicle of race, is discriminatory and injurious in and of itself, even if his harassers wanted to make his life miserable for reasons altogether unrelated to the color of his skin. See Frantz Fanon, The Fact of Blackness in THE ANATOMY OF RACISM 108-11 (David Theo Goldberg, ed., 1990); see also, e.g., Daniels, 937 F.2d at 1273 & n. 3, 1274 & n. 4; Steiner, 25 F.3d at 1464; Aman v. Cort Furniture Rental Corp., supra, 85 F.3d at 1083.
Just so here. We doubt that it would have mattered for H. Doe to know, when his testicles were in Dawe's grasp, that Dawe was heterosexual or (as his deposition reveals) that he lived with a woman (Dawe Dep. 51-52), and thus that he may not have been sexually interested in H. The experience was still humiliating in a deeply personal way, as only sexual acts can be. See Katz v. Dole, supra, 709 F.2d at 254; Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), cert. denied, 489 U.S. 1020, 109 S.Ct. 1140, 103 L.Ed.2d 201 (1989); Catherine A. MacKinnon, ONLY WORDS 60 (1993). It may not have been an "overt sexual advance" in the sense that it reflected a desire to have sex with H. See post at 598-599. But aside from being unwelcome, it was a grave intrusion upon H.'s sexual privacy and, given the remarks that accompanied the assault, an explicit comment upon his gender. Frankly, we find it hard to think of a situation in which someone intentionally grabs another's testicles for reasons entirely unrelated to that person's gender. But the overall context of the harassment alleged in this case — the name-calling, the references to sexual assault, and the intrusive, intimate touching, all of which expressly invoked H.'s gender — certainly makes it reasonable to infer that the workplace was made hostile to him because of his gender. And to the extent that their mind-set is pertinent, we also think that one can reasonably infer that Dawe and his cohorts chose to harass H. in the way that they did with just this likelihood in mind — that is, that their intent was to humiliate him as a man.
We view with considerable skepticism, therefore, the notion that same-sex harassment that is overtly sexual and sex-based is only sex discrimination when the plaintiff can produce proof that the harasser chose him specifically because he is male. Again, we have difficulty imagining when harassment of this kind would not be, in some measure, "because of" the harassee's sex — when one's genitals are grabbed, when one is denigrated in gender-specific language, and when one is threatened with sexual assault, it would seem to us impossible to de-link the harassment from the gender of the individual harassed. We need not so decide, however, because there is more linking the harassment to the plaintiff's gender here.
Assuming arguendo that proof other than the explicit sexual character of the harassment is indeed necessary to establish that same-sex harassment qualifies as sex discrimination, the fact that H. Doe apparently was singled out for this abuse because the way in which he projected the sexual aspect of his personality (and by that we mean his gender) did not conform to his coworkers' view of appropriate masculine behavior supplies that proof here. The Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), makes clear that Title VII does not permit an employee to be treated adversely because his or her appearance or conduct does not conform to stereotypical gender roles. Price Waterhouse was a case in which the parties were at odds over whether Ann Hopkins was denied a partnership in an accounting firm based on an illegitimate criterion — sex — or a legitimate one-interpersonal skills. Hopkins pointed to the firm's reliance upon gender stereotypes as evidence that sex was the motivating factor in the decision: her reviews asserted that she was "macho," "over-compensated for being a woman," needed "a course at charm school," and was "a lady using foul language" (id. at 235, 109 S.Ct. at 1782); moreover, when a partner explained the adverse vote to Hopkins, he advised her that she ought to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry" in order to brighten her prospects for making partner in
490 U.S. at 251, 109 S.Ct. at 1791. (Neither Justice White, nor Justice O'Connor, each of whom concurred in the judgment, had any quarrel with that proposition.)
Just as the accounting firm's reliance upon gender stereotypes informed the Court's decision in Price Waterhouse that Ann Hopkins had presented sufficient proof that she was denied a partnership because of her sex and not some other factor, evidence that the same stereotypes animated H. Doe's co-workers suggests that the harassment they perpetrated on him was "because of" his sex. A woman who is harassed in the workplace with the degree of severity or pervasiveness that our cases require
The city maintains that this case cannot be fit within the Price Waterhouse framework because "[t]he type of stereotyping actionable under Price Waterhouse is that of traditionally perceived personality traits, not personal appearance or physical traits." Belleville Br. at 8. That is simply wrong. Price Waterhouse itself recognizes that gender discrimination may manifest itself in the employer's stereotypical notions as to how an employee of a given gender should dress and present herself. Ann Hopkins was, after all, told that she might improve her chances for partnership if she would only "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 490 U.S. at 235, 109 S.Ct. at 1782. The plurality found such remarks to be highly probative of actionable sex stereotyping (id. at 251, 109 S.Ct. at 1791), noting that "it [does not] require expertise in psychology to know that, if an employee's flawed `interpersonal skills' can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism" (id. at 256, 109 S.Ct. at 1793); see also id. at 272, 109 S.Ct. at 1802 (O'Connor, J., concurring). We ourselves recognized ten years in advance of Price Waterhouse that workplace dress codes founded on cultural stereotypes are not permissible under Title VII. Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979) (invalidating rule requiring female but not male employees to wear bank-approved uniforms), cert. denied, 445 U.S. 929, 100 S.Ct. 1316, 63 L.Ed.2d 762 (1980).
It is true, as Belleville reminds us, that courts have afforded employers a certain amount of latitude to adopt employee grooming standards that are not entirely gender neutral. See, e.g., DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 332 (9th Cir.1979) (discharge of male nursery school teacher because he was perceived as effeminate for wearing earring beyond purview of Title VII)
The district court seemed to think that because there was no proof that the Does' harassers are gay, the Does could not, as a matter of law, show that they were harassed "because of" their sex. Order at 3-4. It is not alone in that view; a number of courts have suggested that such proof is virtually the sine qua non of a same-sex harassment claim under Title VII. E.g., McWilliams v. Fairfax County Bd. of Supervisors, supra, 72 F.3d at 1195 & n. 5; Hopkins v. Baltimore Gas & Elec. Co., supra, 77 F.3d at 752; Word v. Ridley School Dist., 940 F.Supp. 810, 812-13 (E.D.Pa.1996); see also Shermer, 937 F.Supp. at 784.
The Fourth Circuit's recent opinions are illustrative of the emphasis on sexual orientation. Although that court has recognized the viability of same-sex harassment claims, it has suggested that the homosexuality of the plaintiff and/or his harassers is an "essential" element of the claim that must be pleaded and proved. McWilliams v. Fairfax County Board of Supervisors, supra, 72 F.3d at 1195 & n. 5. Mark McWilliams worked as an automotive mechanic for a county transportation agency. A learning disability had arrested his cognitive and emotional development, and perhaps that is what made him the target of a group of male co-workers known colloquially as the "lube boys." These men repeatedly teased and questioned McWilliams about his sex life, exposed themselves to him, and touched him in sexually suggestive ways. One co-worker made a habit of following McWilliams into the bathroom where, with a hand on the unzipped fly of his pants, he would invite McWilliams into a stall. He also repeatedly asked if he could masturbate McWilliams and on one occasion, while McWilliams was working under the dashboard of a bus, he actually did so, rubbing McWilliams' penis until it became erect. In one of several instances in which McWilliams was blindfolded, his hands were cuffed, and he was forced to his knees, this same co-worker put his finger in McWilliams' mouth and simulated an act of oral sex. In another instance, McWilliams was held down while one co-worker exposed himself and another placed a broom handle between McWilliams' buttocks. On yet another occasion, a condom was placed in McWilliams' food. Ultimately, McWilliams filed suit under Title VII, but
Id. at 1195-96 (emphasis in original). Judge Michaels, who dissented, wrote that he was inclined to hold "that Title VII is implicated whenever a person physically abuses a co-worker for sexual satisfaction or propositions or pressures a coworker out of sexual interest or desire." Id. at 1198. In his view, it was unnecessary for McWilliams to allege or prove that his harassers were homosexual. "The acts of assault and harassment are sufficiently direct and suggestive by themselves to raise the question whether they were done `because of [McWilliams'] ... sex.'" Id. at 1199. The majority explicitly rejected this suggestion, however:
Id. at 1195 n. 5.
More recently, in Hopkins v. Baltimore Gas & Elec. Co., supra, Judge Niemeyer, a member of the majority in McWilliams, expounded further on why he believed proof of the harasser's sexual orientation is pertinent in a case alleging same-sex harassment. "When someone sexually harasses an individual of the opposite gender," he explained, "a presumption arises that the harassment is `because of' the victim's gender."
Finally, in Wrightson v. Pizza Hut of America, Inc., supra, the court addressed the threshold question it had skirted in McWilliams and Hopkins — whether same-sex harassment is, in fact, actionable under Title VII. (The court had assumed that it was in McWilliams, and Judge Niemeyer so argued in Hopkins.) Noting that the language of the statute did not rule out same-sex claims, the court concluded that "a same-sex `hostile work environment' sexual harassment claim may lie under Title VII where a homosexual male (or female) employer discriminates against an employee of the same sex or permits such discrimination against an employee by homosexual employees of the same sex." 99 F.3d at 143. The harassment in Wrightson included sexual advances, physical contact, and graphic, sexual remarks; but in addition to the nature of the harassment itself, the plaintiff had alleged that his harassers, who included his male supervisor and certain of his male co-workers, all were homosexual. In view of that allegation, the court concluded that the plaintiff's claim of same-sex harassment was viable under Title VII as a claim of sex discrimination. Id. at 143; see also Yeary v. Goodwill Indus.-Knoxville, Inc., supra, 107 F.3d at 447-48; Fredette v. BVP Management Assocs., supra, 112 F.3d at 1505, 1506-07.
The notion that the harasser's sexual orientation is pertinent stems from the assumption that sexual harassment is a function of the harasser's sexual attraction to the harassee. E.g., Hopkins, 77 F.3d at 752 (Niemeyer, J.); Martin v. Norfolk Southern Ry. Co., 926 F.Supp. 1044, 1049-50 (N.D.Ala. 1996). Thus, the heterosexual man who sexually harasses a woman discriminates within the meaning of Title VII because (assuming he is a zero on the Kinsey scale
The Supreme Court's recent decision in O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), and our own subsequent decision in Carson v. Bethlehem Steel Corp., supra, 82 F.3d 157, demonstrate that it is ill-advised to make categorical assumptions about which factual scenarios bespeak discrimination and which do not. In O'Connor, the Court considered whether a plaintiff attempting to make out a prima facie case of age discrimination under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), had to show that upon his discharge, he was replaced by someone outside the class of persons forty years of age and older protected by the Age Discrimination in Employment Act. In a unanimous
82 F.3d at 158-59.
The case before us, obviously, is not a discharge case that the plaintiff has pursued within the framework of McDonnell Douglas and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), but at bottom the question confronting us here is the same question raised in O'Connor and Carson: does the evidence before us permit the inference that the plaintiff was the victim of unlawful discrimination? O'Connor and Carson make clear that we must not permit the viability of a discrimination claim to turn on arbitrary factors that do not capture the universe of actionable discrimination. We are convinced that the sexual orientation of the person who sexually harasses his co-worker is just such an arbitrary factor.
The focus on the sexual orientation of the harasser betrays a fundamental misconception that sexual harassment inevitably is a matter of sexual desire run amok — in other words, that the harasser is attracted to the victim and simply cannot restrain himself. Certainly we agree that sexual harassment can spring from the harasser's attraction to the victim. See Fredette, 112 F.3d at 1506; Yeary, 107 F.3d at 447-48; Nichols v. Frank, supra, 42 F.3d at 510 (opinion of Reinhardt, J.). But no case that we are aware of holds that the harasser must have been sexually interested in the victim in order for a claim of sexual harassment to be viable. Take Dey v. Colt Constr. & Dev. Co., supra, 28 F.3d 1446, for example. There the male harasser was prone to describe female colleagues in terms like "broad" and "flat chested cunt." He also routinely made sexually charged remarks to and about the plaintiff, suggesting, for example, that Dey had not returned from a vacation to Phoenix with a tan because she spent the week on her back in bed and remarking to someone on the phone that "there is a girl in my office going down on me" as Dey leaned down to place some documents on the floor. On one occasion, while he and Dey were alone in an elevator, he unzipped, and then zipped, his slacks. We found the pattern of such incidents to be strong enough evidence of sexual harassment to require a trial without proof that the harasser was actually attracted to the plaintiff, or even that he was heterosexual. Indeed, we deemed the evidence sufficient to survive summary judgment despite the fact that Dey had never been touched in a sexually suggestive manner (as H. Doe was), and despite the fact that it was never intimated to Dey that sex was a quid pro quo
The Eighth Circuit made just this point recently in Quick. In that case the male employees of a muffler production plant had repeatedly "bagged" the plaintiff (grabbed his testicles, or otherwise assaulted his groin) and subjected him to verbal abuse which, incidentally, included the types of homophobic epithets that H. Doe's co-workers favored (more on that below). The district court entered summary judgment in favor of the defendant on his Title VII claim, reasoning in part that the abuse, although it involved the plaintiff's genitals, was not genuinely sexual in nature: "`Bagging' did not happen because male DCI coworkers were demanding sexual favors, were expressing sexual interest, or making sexual comments regarding Quick's gender." Quick v. Donaldson Co., 895 F.Supp. 1288, 1296 (S.D.Iowa.1995). The court of appeals rejected this rationale:
90 F.3d at 1379 (citations omitted). The district court spoke to the same point recently in Tanner v. Prima Donna Resorts, Inc.:
919 F.Supp. 351, 355 (D.Nev.1996); accord Miller, 946 F.Supp. at 705; Johnson v. Community Nursing Servs., supra, 932 F.Supp. at 273-74 & n. 8; see also Deering, supra, 27 CUMB. L.REV. at 289-90; Papish, supra, 28 COLUM. HUM. RTS. L.REV. at 229.
The focus on sexual orientation thus signals a departure from opposite-sex harassment cases, which have never made the plaintiff's right to relief dependent on proof that the harasser is heterosexual. Judge Niemeyer's opinion in Hopkins, which we quoted from above, offers an explanation for the dichotomy. Again, his point is that "[w]hen someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is `because of' the victim's gender." 77 F.3d at 752. That presumption makes it unnecessary for the plaintiff in such a case to offer any proof that her harasser was heterosexual. "But," Judge Niemeyer reasons, "when the harasser and the victim are the same gender, the presumption is just the opposite...." Id.; see also Quick, 90 F.3d at 1381 (Nangle, J., dissenting); Martin, 926 F.Supp. at 1049-50. See post at 601, 606. Thus the requirement that the victim of same-sex harassment offer proof of his harasser's sexual orientation, whereas the victim of opposite-sex harassment is burdened with no such requirement.
It may well be true that we have always assumed, in the familiar case of opposite-sex harassment, that the harasser was heterosexual and that his sexual orientation toward the opposite sex in some measure contributed to the harassment. But to imbue that assumption with the legal weight of a presumption strikes us as a dramatic step in the evolution of sexual harassment law with troubling implications for claims of opposite-sex harassment and same-sex harassment alike.
Let us assume, for example, that we do (or will from now on) formally presume that when a woman complains of explicit sexual harassment by a man, her harasser was heterosexual and for that reason the harassment occurred "because of" her gender. Is that presumption rebuttable? In other words, could her employer avoid liability by proving that the harasser is gay? Or, to take a more plausible scenario, might the employer rebut the presumption by showing that the harasser was motivated to torment the plaintiff not by her gender but out of revenge, for example, because she won a promotion that he had sought? See Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 998 (10th Cir.1996) (harassment of female plaintiff began with dispute over apportionment of sales commissions). Or, to borrow a page from McWilliams, what if the plaintiff's male co-workers harassed her not out of sexual desire, but because of her "known or believed prudery, or shyness, or other form of vulnerability to sexually-focussed speech or conduct," or perhaps because of their "own sexual perversion, or obsession, or insecurity"? 72 F.3d at 1196. McWilliams suggests that these are motivations unrelated to gender; if so, they would presumably defeat not only claims of same-sex harassment, but claims of opposite-sex harassment as well. And yet, opposite-sex cases make clear that the reasons for the harassment are not dispositive. E.g., Winsor, 79 F.3d at 1001 (dislike of plaintiff was not a defense to harassment charge: "The fact that plaintiff's abuse was motivated by gender neutral reasons is irrelevant."). Thus, claims of opposite-sex harassment are not rejected because the harassment stemmed from the woman's perceived shyness or prudery, or (as is frequently apparent) the male harasser's sexual perversion, obsession, insecurity, vulgarity, insensitivity, or meanness of spirit. Cf. McWilliams, 72 F.3d at 1196. Perhaps these scenarios are recognized as viable claims of sex discrimination because the presumption that the harasser acted "because of" his target's gender is irrebuttable in opposite-sex cases. If that is so, we are hard pressed to discern what beyond the sexual content of the harassment
The presumption that when a man sexually harasses another man (or a woman so harasses another woman), it is not because of sex (see post at 601, 605, 606), is even more problematic. The presumption apparently is rebuttable in most cases only by proof that the harasser is gay. McWilliams, 72 F.3d at 1195 n. 5. See post at 598-599, 605, 605-606.
The problematic nature of the notion that sexual harassment is actionable only when the harasser is sexually oriented to the victim's gender becomes even more apparent when one considers the disparate results that follow. It suggests, for example, that if the harasser is bisexual, there could be no liability, for the bisexual person does not "discriminate" — he is sexually oriented toward both sexes, and therefore both men and women might fall prey to sexual harassment in the form of unwelcome sexual advances. See, e.g., Pasqua, 101 F.3d at 517.
We need not immerse ourselves in this quagmire. We have never for a moment, in cases where men have harassed women, entertained the notion that it would be a defense to the claim of sexual harassment to show that the harassers were gay, or at least that they were not sexually attracted to the plaintiff (although that is where this business of presumptions about the sexual orientation of the harasser leads us). See Amy Shahan, Comment, Determining Whether Title VII Provides a Cause of Action for Same-Sex Sexual Harassment, 48 BAYLOR L.REV. 507, 518 (1996); Locke, supra, 27 RUTGERS L.J. at 398-401.
A concern that seems to have motivated a number of courts in refusing to recognize cases of same-sex sexual harassment is that courts will be deluged with complaints stemming from horseplay and rough language among men. In McWilliams, for example, the court agreed that the type of harassment the plaintiff had suffered at the hands of the "lube boys" was "utterly despicable," that such harassment might well interfere with one's work performance, and that no employer should tolerate it. 72 F.3d at 1196. Yet, the majority was concerned that "to interpret Title VII to reach that conduct when only heterosexual males are involved as harasser and victim would be to extend this vital statute's protections beyond intentional discrimination `because of' the offended worker's `sex' to unmanageably broad protection of the sensibilities of workers simply `in matters of sex.'" Id.; see also Martin v. Norfolk Southern R. Co., supra, 926 F.Supp. at 1049-50.
Interestingly, very similar concerns were expressed when courts rejected the first claims of sexual harassment brought by women in the 1970s. See, e.g., Corne v. Bausch & Lomb, Inc., 390 F.Supp. 161, 163-64 (D.Ariz.1975) ("[A]n outgrowth of holding such activity to be actionable under Title VII would be a potential federal lawsuit every time any employee made amorous and/or sexually oriented advances toward another. The only sure way an employer could avoid such charges would be to have employees who were asexual."), vacated without published opinion, 562 F.2d 55 (9th Cir.1977); Tomkins v. Public Serv. Elec. & Gas Co., 422 F.Supp. 553, 557 (D.N.J.1976) ("If the plaintiff's view were to prevail, no superior could, prudently, attempt to open a social dialogue with any subordinate of either sex. An invitation to dinner could become an invitation to a federal lawsuit if a once harmonious relationship turned sour at some later time. And if an inebriated approach by a supervisor to a subordinate at the office Christmas party could form the basis of a federal lawsuit for sex discrimination if a promotion or a raise is later denied to the subordinate, we would need 4,000 federal trial judges instead of some 400."), rev'd, 568 F.2d 1044 (3d Cir. 1977).
Here we are, twenty years later, and the sky has not fallen. We are not, it turns out, incapable of distinguishing between the occasional off-color joke, stray remark, or rebuffed proposition, and a work environment that is rendered hostile by severe or pervasive harassment. We are well practiced in examining sexual harassment from the objective viewpoint of the reasonable individual as well as the subjective view of the plaintiff. When a man complains that he has been sexually harassed by another man, then, we know how to distinguish between harassment and "horseplay"; we have been making that very distinction for years in the cases that female plaintiffs have brought.
Our analysis here does not support a Title VII claim whenever sexually-oriented remarks or conduct occur in the workplace. Co-workers may trade a crude joke or boast of their sexual exploits without putting their employer at risk of suit by anyone who happens to overhear their sexually explicit discussions. But it is a different matter when an employee is made the unwilling target of repeated, sexually-charged and gender-based remarks, when he is threatened with sexual assault, and when he is subjected to unwelcome sexual contact. Common sense enables us to distinguish between occasional, undirected vulgarity that would not tend to make the workplace particularly hostile to any man or woman and a campaign of harassment that
We perceive no conflict between our holding today and our opinion in Ulane, supra. See post at 599, 600-601. We concluded in Ulane that Title VII did not reach the claim of a person discharged because she was a transsexual. In so holding, we emphasized that "sex," for purposes of Title VII, should be construed in a traditional manner:
742 F.2d at 1085. Belleville argues that H.'s theory of sex discrimination exceeds the "traditional" view of the subject we took in Ulane. There is a hint of the same rationale in the district court's opinion: by emphasizing that both plaintiffs were males working in an all-male environment (Order at 3-4), the court seemed skeptical that the plaintiffs could prove, consistent with Ulane, that they were discriminated against "because they are men." See also post at 601, 605-606; Goluszek, 697 F.Supp. at 1456; Quick, 895 F.Supp. at 1296. Here, for example, the evidence suggests not that H. Doe's co-workers were biased against men per se, but against men who did not conform to their notions of masculinity.
Yet, Ulane certainly did not purport to define the universe of actionable sex discrimination. In fact, the district court in that case made no findings supporting the notion that Ulane had been discriminated against because of her gender; instead, the lower court's findings focused exclusively on the discrimination she experienced because she was a transsexual. See 742 F.2d at 1087. In other words, the record suggested that her discharge was not triggered by her gender per se, but by her change in (anatomical) gender. Id. That is what we understand the panel to have meant when it emphasized that the scope of Title VII is limited to discrimination "against women because they are women and men because they are men." See Holloway v. Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir.1977). Reading Ulane, as Belleville does, to require evidence of a gender-based animus — the harasser's dislike of men or women — would be inconsistent with our observation in King v. Board of Regents of Univ. of Wis. Sys., 898 F.2d 533, 539 (7th Cir.1990), that such an animus is not a prerequisite to recovery for sex discrimination.
Moreover, to the extent that the city infers from Ulane that harassment stemming from the employee's failure to meet the stereotypical expectations of his gender is not discrimination "against a man because he is a man," it is drawing an inference that is foreclosed by the Supreme Court's subsequent decision in Price Waterhouse. Recall that the remarks at issue there did not suggest that the employer believed women as a class were inappropriate candidates for partnership. Rather, they reflected an insistence that female employees conform to traditional views of how women should appear and behave. This is precisely the type of biased thinking to which H. Doe attributes his adverse treatment as Belleville's employee. See Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L.REV. 2479, 2516 (1994) (noting that the harassment of men who do not fit neatly within the male stereotype has much in common with the sexual harassment of women); see also nn. 16 & 19, supra.
Nonetheless, Belleville argues, and the district court agreed, that the very content of the remarks made to H. reflects discrimination based on H.'s perceived homosexuality (H. is not in fact gay) rather than his sex. Order at 4; see post at 601, 607. The courts have widely agreed that discrimination based on sexual orientation (actual or perceived), as opposed to sex, is beyond the purview of Title VII. E.g., Ulane, 742 F.2d at 1084 (collecting cases). And there is indeed an unmistakably homophobic aspect to the harassment inflicted on H., exemplified by the use of epithets like "fag" and "queer,"
In Ulane, we acknowledged that although discrimination based on transsexualism is not actionable under Title VII, an individual who is a transsexual may nonetheless bring suit when discriminated against on the basis of his or her sex. 742 F.2d at 1087 (citing Holloway v. Arthur Andersen & Co., 566 F.2d at 664). The same principle would of course apply to a person who is gay or lesbian or who is perceived to be so. See Vandeventer, 887 F.Supp. at 1180; Valadez, 895 F.Supp. at 1014.
The district court also found the proof of sexual harassment to be wanting because "[n]either Plaintiff construed the actions [of their coworkers] as unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature." Order at 4. That finding is based on an unduly cramped reading of the record, however. It is true of course that in order to establish a viable hostile environment claim, a plaintiff must tender evidence permitting of the inference both that a reasonable person would have perceived the environment as abusive and that he actually experienced it as such. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir.1994). But the plaintiff's perceptions need not neatly track the EEOC's legal definition of sexual harassment in order to satisfy the subjective component of this inquiry. In this case, for example, H. was asked whether Dawe and the other workers had ever "ma[d]e any sexual advances toward you," whether they "ask[ed] you to have sex with [them]," and whether "there [was] any physical contact between you and [them] of a sexual nature." H. Dep. 29; compare 29 C.F.R. § 1604.11. In each instance, H. answered "no." J. Doe was likewise asked whether his coworkers ever made sexual advances or propositioned him, and like his brother he said they had not. J. Dep. 39-40; see id. at 41. Moreover, when H. was asked what kind of damages he sought to recover, he answered that he wanted a verdict that would send a message that "kids shouldn't have to put up with what adults give out." H. Dep. 75; see J. Dep. 74-75. A lawyer or a more sophisticated plaintiff might have used these rather narrow questions
H. Dep. 61-62; see J. Dep. 74 ("It just makes me aware of what people can do and the power they can have over you."); id. at 73 ("After that, I just — I go to work and that's it. If you say something to me, then I'll answer your question, but I'm not going to strike up a conversation with you"); see also id. at 81-82 (noting that the harassment affected him mentally, and that his grades in school suffered).
In sum, we find that H. is entitled to a trial on his hostile environment claim. Granting him the benefit of the inferences that reasonably may be drawn from the evidence before us, it is clear that a reasonable factfinder could conclude H. was harassed sexually and that his gender played a significant role in that harassment.
Whether the harassment that J. Doe experienced fairly may be described as gender-based is a closer question. As our summary of the facts reveals, the verbal harassment directed at J. for the most part lacked the explicit references to sex and gender that characterized the harassment of his brother. Dawe's query whether H. might have passed along his case of poison ivy to J. by having anal sex with him stands out as one exception; there is also some suggestion in the
Both Does contend that they were discharged in retaliation for airing their discontent with the harassment inflicted by their co-workers in the Cemetery Department. In order to make out a prima facie case of retaliation under Title VII, a plaintiff must offer evidence that he engaged in protected activity that resulted in an adverse employment decision. Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 708 (7th Cir.1995); Dey, 28 F.3d at 1457, 1458. Here, the Does contend that their complaint to city employee Bonnie Boeving qualifies as protected activity under Title VII, and that the verbal thrashing and toss of a firecracker at H. — which they posit as a retaliatory constructive discharge — resulted from that complaint. The district court dismissed the Does' retaliation claim on the strength of its conclusion that they had insufficient evidence of sexual harassment. Order at 5. Yet, even if the harassment claims of both plaintiffs lacked adequate support in the record, the retaliation claim was not necessarily doomed. A plaintiff need only have a good faith belief that he is challenging conduct proscribed by Title VII in order subsequently to be able to claim retaliation. E.g., Dey, 28 F.3d at 1458.
Nonetheless, we find the record inadequate to support the inference that the Does' co-workers retaliated against them for engaging in protected activity. The Does did inform Boeving to some extent of the harassment that had convinced them to quit their jobs, although it is unclear that they detailed their experiences sufficiently for her to perceive them as complaining of sexual harassment. Even if they did, the subsequent abuse heaped upon the Does by their coworkers appears to have been motivated, so far as the record reveals, by the discovery that the Does were not, as they had told their fellow cemetery workers, moving to Oklahoma. There is, in other words, no evidence suggesting that the Does' harassers had learned that the Does had complained to anyone of the harassment and that they were retaliating for that reason. Belleville was therefore entitled to summary judgment on the retaliation claim.
D. Equal Protection
This court has previously recognized that acts of sexual harassment intentionally directed at a person because of his sex may violate the Equal Protection Clause of the Fourteenth Amendment. Bohen, 799 F.2d at 1186-87; see also Trautvetter v. Quick, 916 F.2d 1140, 1148-49 (7th Cir.1990). We have already concluded that the record is sufficient at this juncture to support the Does' Title VII hostile environment claim, and we also find the record adequate to support the finding of discriminatory intent that their Equal Protection claim requires. As we have discussed, the evidence permits the inference that H. was singled out for harassment because, in wearing an earring, he departed from what his co-workers deemed
We are less confident that the harassment to which the Does allegedly were subjected can be attributed to Belleville as a "policy or custom" of the city as it must if Belleville is to be held liable under 42 U.S.C. § 1983. See 799 F.2d at 1188-89. Among the factors the cases cite as relevant to this determination are the involvement of supervisory and management personnel in the discrimination complained of, and the policies and procedures (if any) that the municipality had in place to discourage and deal with such discrimination. Id. at 1189. It is noteworthy here that the plaintiffs' supervisor is alleged not only to have known about, but to have participated in the harassment, and the evidence is mixed as to whether the Cemetery Department had any policy governing sexual harassment prior to the Does' departure. See R. 30, Letter dated Sept. 3, 1992 from Robert J. Sprague to Lynn Bruner, EEOC, at 2 (denying existence of any policy regarding sexual harassment); Goodwin Dep. 59-62 (recalling receipt, at some time before or after Does' employment, of manual which contained provisions regarding sexual harassment). This is not, in any event, an issue that Belleville raises on appeal or that it pursued below. The Does were under no obligation to put forward evidence that would satisfy the prerequisites to municipal liability, when the city itself did not seek summary judgment on that ground. Hartman v. Board of Trustees of Community College Dist. No. 508, 4 F.3d 465, 469 (7th Cir.1993) (citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989)). Consequently, although we share some of our colleague's reservations on this score (see post at 602), we believe it inappropriate for us to say anything definitive in the absence of a developed record on the point. We leave this for the district court to sort out on remand.
For the reasons set forth above, we reverse the district court's grant of summary judgment in favor of Belleville as to H. and J. Doe's Title VII hostile environment and Equal Protection claims, but affirm the entry of summary judgment as to their Title VII retaliation claim. The case is remanded to the district court for further proceedings consistent with this opinion. The Does shall recover their costs of appeal. See Fed. R.App.P. 39(a).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
MANION, Circuit Judge, concurring in part and dissenting in part.
I agree with the court's conclusion that same-sex discrimination can be actionable under Title VII, but I reach that conclusion in more narrow circumstances and for different reasons. In view of those reasons, I do not agree that Title VII protects against the behavior that the Does experienced in this case, and thus I dissent from the court's reversal of the district court's decision granting judgment to the City of Belleville. For the same reason I dissent from the court's reversal of the Does' equal protection claim. I concur with affirming the dismissal of the retaliation claim.
Although the Doe brothers were twins, apparently they were not alike in stature or dress. When they showed up for their summer job at the graveyard operated by the City of Belleville, H. was wearing an earring and J. was apparently overweight. Jeff Dawe and the other members of the full-time crew — all considerably older than the two sixteen-year-olds — quickly labeled H. as the "fag" or the "queer" and J. as the "fat boy." Assuming the facts most favorable to the plaintiffs, as we must when defendants seek summary judgment, Dawe spearheaded a relentless verbal attack on H., accusing him in front of the others of being homosexual, and taunting him with threats of anal sex. Other members of the crew, including the supervisor Stan Goodwin, encouraged and participated in this crude banter. This mean-spirited teasing continued daily until Dawe, after returning from lunch in a somewhat inebriated state, grabbed H. by the crotch and declared to the other crew members "Well, I guess he is a guy." Instead of Dawe being fired on the spot for the physical assault, it was business as usual at the graveyard, which presumably included the verbal taunting. The Does did not report the assault (or any of the verbal abuse, for that matter) to anyone. Instead they invented a reason for quitting and ultimately did. They then filed this lawsuit against the City claiming among other things violations under Title VII — specifically sexual harassment.
The question before us is simple, but as indicated by the length of the court's majority opinion, the answer is quite complicated. Simply put, can a person of the same sex (here, male) have a claim under Title VII not only for sex discrimination, but also sexual harassment in a workplace? Of course, Title VII is our starting point: it is "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1).
Nothing in the language of Title VII limits its protection against sex discrimination to persons discriminated against by someone of the opposite sex. Nor would such a limit seem logical in certain circumstances. Consider for instance the case of a female supervisor who refuses to promote a woman into a sales position because the supervisor believes that a woman should not hold a position that requires overnight travel. Given that motive, the supervisor's decision is illegal sex discrimination under Title VII because she is discriminating against the subordinate because of her sex — female. As would the case of a male supervisor who fires a male receptionist because he prefers that a woman have the job of greeting customers that come into the office; the supervisor terminated the receptionist because of his sex-male. Applying the plain language of Title VII leads to the inevitable conclusion that discriminating against someone because of that person's sex is illegal, even if the discriminator is of the same sex as the victim.
These examples, however, involve cases of sex discrimination, not hostile work environment claims. Yet consistency requires us to examine the possibility of same-sex hostile work environment claims. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986), the Supreme Court agreed with the majority of lower courts that treated sexual harassment claims as a form of sex discrimination. Meritor made sexual harassment a subset of sex discrimination, i.e., sex discrimination is a general category of unlawful activity of which sexual harassment is a specific example. Accordingly, sexual harassment should share the attributes of a sex discrimination claim. In other words, if it is possible for a man to state a claim of sex discrimination against his male supervisor then it follows that a man could also state a claim of sexual harassment against that same superior.
A clear case of same-sex sexual harassment occurs when an employee makes overt sexual advances on another employee of the same sex. Just such a scenario occurred in
Id. at 448.
Similarly, in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir.1997), where a homosexual male maitre d' sexually harassed a male waiter, the Eleventh Circuit held that the waiter could maintain a Title VII claim against their restaurant-employer for same-sex sexual harassment. The Eleventh Circuit reasoned that "where a homosexual male propositions another male [t]he reasonably inferred motives of the homosexual harasser are identical to those of the heterosexual harasser — i.e., the harasser makes advances towards the victim because the victim is a member of the gender the harasser prefers." Id. at 1505. The Eleventh Circuit then reversed the district court's grant of summary judgment to the restaurant because Fredette had proffered evidence that "he was the victim of sexual advances to which members of the opposite gender were not subjected."
Yeary and Fredette involved clear cases of actionable same-sex sexual harassment because the harassers' motives were clear. So were the motives clear with the hypothetical examples of the female supervisor who would not promote a female subordinate to a challenging sales position or the male employer who fired the male receptionist. Each acted the way they did because of the victim's sex. But the two hypotheticals were not hostile environment sexual harassment cases. It would be much more difficult to transpose the sales position and the receptionist hypotheticals into a same-sex sexual harassment claim because the harasser's motive still has to be because of the victim's sex, and other than the situation in Yeary and Fredette, it is difficult to devise a scenario where such a motive would exist.
While same-sex sexual harassment claims may be actionable, such claims cannot be separated from the statute from which they evolved. After all, Title VII requires that the discrimination be "because of such individual's sex," and does not expressly provide for sexual harassment claims. Yet, as the Supreme Court stated in Meritor, "without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminates on the basis of sex.'" Meritor, 477 U.S. at 64, 106 S.Ct. at 2404 (emphasis added). Because sexual harassment claims are derived from Title VII's "because of such individual's sex" language, such claims likewise must be based on harassment meted out "because of such individual's sex." This is why the Supreme Court originally defined sexual harassment in terms of sex discrimination: "discrimination based on sex [that] has created a hostile or abusive work environment." Id. at 66, 106 S.Ct. at 2405. In the context of a hostile work environment claim, this means that the victim suffers the harassment because he is a man and not a woman, or because she is a woman and not a man. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984).
In short, motive is dispositive, for while Meritor interpreted Title VII to prohibit sexual
In Ulane, 742 F.2d at 1085, this court also made clear that Title VII's prohibition of discrimination "because of such individual's sex" means that it is "unlawful to discriminate against women because they are women and men because they are men." In other words, "Congress intended that the term `sex' in Title VII mean simply `man' or `woman.'" See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 749 n. 1 (4th Cir.1996) (Niemeyer, J., concurring). Or, more appropriately, in Congress' own words, it is unlawful to discriminate against an individual "because of such individual's ... sex." DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2d Cir.1986) ("Sex" refers to membership in a class delineated by gender rather than sexual activity); DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327, 329-30 (9th Cir.1979) ("Title VII's prohibition of `sex' discrimination is on the basis of gender, and should not be judicially extended to include sexual preferences such a homosexuality"); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 327 (5th Cir.1978) (same). The reason is apparent when we look at the other groups of persons afforded protection by Title VII. In making certain employer actions unlawful, Congress Prohibited discrimination against individuals because of their status as a member of certain classes drawn along the lines of race, color, religion or national origin. It is precisely — and only — in this context that the prohibition against discrimination "because of such individual's ... sex" appears. Thus, when Congress outlawed discrimination "because of such individual's sex," it proscribed differentiating among individuals because of the employee's status as a man or woman. See, e.g., DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2nd Cir.1986); Hopkins, 77 F.3d at 751. If the harassment was motivated by the victim's sex (and it is severe and pervasive enough to alter the terms and conditions of employment), then it is illegal; if
The specific question, then, is whether the sexual harassment, the abusive environment created by the Belleville cemetery crew, was because of the fact that H. Doe was a male. In a same-sex hostile environment case it will be very difficult to satisfy this burden, because when a man harasses a man, or a woman harasses a woman, it is not reasonable to infer that the harassment was "because of such individual's ... sex." As the court in McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.1996), explained:
McWilliams, 72 F.3d at 1195-96.
In Hopkins, 77 F.3d 745, the concurrence recognized the same reality, but from a slightly different angle: "When someone sexually harasses an individual of the opposite gender," a "presumption arises that the harassment is `because of' the victim's gender."
Hopkins, 77 F.3d at 752 (Niemeyer, J., concurring). The presumption of which Judge Niemeyer wrote in Hopkins, however, is not a presumption in the burden-shifting sense. Id. Rather, it is the recognition that what is a reasonable inference in opposite-sex cases is not reasonable in same-sex cases.
In this case, it is not reasonable to infer that Dawe harassed H. because H. was male, and not female. None of the comments Dawe made indicates that he subjected H. to harassment because he was a male. The moment H. Doe appeared at work, Dawe saw his earring and proceeded to call him a "fag" and "queer." Dawe told him to "go back to San Francisco with the rest of the queers." The statements as to whether H. Doe is a "boy or a girl" also do not indicate any discriminatory motive against either males or females. Finally, and certainly troubling beyond the sexual harassment issue, is Dawe's physical assault of H. Doe. When Dawe grabbed H. Doe by the crotch he committed a criminal act, as well as a civil battery. He should have been fired immediately and been reported to the local police. Even this battery, however, does not create a reasonable inference that Dawe discriminated against H. Doe because he was male. In fact, this isolated criminal act should not overshadow and thus distort the issue at hand — whether the day-to-day verbal abuse suggesting degrading sexual acts to be imposed upon Doe by Dawe constitutes actionable sexual harassment. It did not. The harassment, while disgusting and intimidating, occurred because Dawe and the others found fault (and perhaps entertainment) because H. Doe wore an earring, not because H. was a male.
The case against J. is even weaker; it is completely void of any evidence that J. was harassed because he was a man. The crew members chided J. because they thought he was fat. Grown men calling a sixteen-year-old "fat boy" is needlessly cruel and offensive. Although it violates normal senses of decency (there seems not to be much decent about this graveyard crew) it does not violate Title VII. The one "sexual" comment directed at J. — that J. could have gotten H.'s poison ivy from anal sex with him — was an isolated comment, although similar to those usually directed at H. No matter how inappropriate or crude, the remark does not support the conclusion that Dawe harassed J.
Likewise I believe that the City of Belleville is entitled to summary judgment on the equal protection claim. Initially, summary judgment is required on the equal protection claim for the same reason it is required on the Title VII claim, namely because the evidence fails to demonstrate that the Does were discriminated against because of their sex. However, there is an entirely separate reason: the Does failed to present any evidence that the City of Belleville had a custom or policy of discrimination. While the court believes that we need not address this point because Belleville did not raise the issue on appeal, it is the Does' burden to present sufficient evidence entitling them to judgment, and the record fails to create the requisite inference that the City of Belleville had a custom or policy of discrimination. Additionally, contrary to the court's pondering, the absence of a sexual harassment policy does not create a policy of sex discrimination. Nor can the knowledge or participation of a low level supervisor, like Goodwin, establish a custom or policy of discrimination. Rather, in the context of § 1983, an official custom or policy may only arise if there is an express policy, a widespread practice that is so permanent and well settled as to constitute a custom or usage, or discrimination caused by a person with final policy making authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995). None of these circumstances exist here. Absent evidence of such a custom or policy, the City of Belleville is entitled to summary judgment on the Does' equal protection claim.
Because I agree with the court that in certain circumstances same-sex harassment is actionable under Title VII, it is necessary to draw a bright line to underscore why I disagree with the court's conclusion that the Does, especially H., have a valid claim. The court concludes that the Does have presented sufficient evidence to reach a jury on both their Title VII and equal protection claims. In reaching these conclusions, the court sees no difference between cases involving same-or opposite-sex harassment. In the court's opinion, the same inferences arise. But this conclusion must be considered in light of the court's view that motive should be irrelevant and that, in effect, "sexuality harassment" — harassment somehow sexual in nature — is prohibited by Title VII. See ante at 580 ("H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality ...."); ante at 593 ("whether his harassers were motivated by his sex, by his purported sexual orientation, or by some other factor, it would seem that he has been harassed sexually and his gender necessarily implicated.").
I contrast "sexuality" with the statutory language "because of such individual's ... sex." My colleagues use seventy-plus pages to tiptoe away from the plain language of the statute in order to greatly expand the horizon on which a litigant can identify sexual harassment by coworkers or supervisors of the same sex. Incredibly, as this court now sees it, sexual harassment need not constitute discrimination "because of such individual's sex," i.e. because the victim is a man and not a woman, or visa versa, Ulane, 742 F.2d at 1085, in order to be actionable under Title VII. Rather, if raunchy sexual banter is directed at an employee by coworkers of the same sex because they do not like him, do not respect him, want to tease him, want to embarrass him, or simply want to "initiate" him into a rather disgusting workplace, under the court's new standard employees targeted by such mean-spirited teasing could have a claim merely by the sexual nature of the teasing. Perhaps judges think an expansion is necessary because Congress has not sufficiently asserted itself in cleaning up such workplaces. But that is not the court's role. We must apply the law as Congress enacted it rather than to amend it to "correct" workplace situations the court does not like. See Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir.1995) (Title VII "is not designed to purge the workplace of vulgarity.").
Throughout the opinion the court shifts the focus from the statutory language ("because of such individual's ... sex") to what generally can be called "sexuality." It does so almost immediately, when, after setting forth the requirement that to be actionable, sexual harassment must be "because of such individual's sex," see supra at 569, the court quickly rephrases the question as whether the "harassment ... is in some way linked to the plaintiff's sex," ante at 570, or whether there is "a nexus between the harassment and the plaintiff's gender...." Ante at 570. See also ante at 576 (questioning whether there is "the nexus to the plaintiff's gender that Title VII requires.") With the question restated, the court begins to question why proof of discriminatory intent is "needed when the harassment has explicit sexual overtones...." Ante at 576. Here the court examines the content of the harassment held actionable in other Title VII cases brought by women for harassment by men, implying (in some places even stating) that it is the "sexual overtones," ante at 576, or the "sexual nature," ante at 570, or the "sexual content." ante at 575, or the "sexual character," ante at 575, of the harassment that makes it illegal. By concentrating on the sexual content of the harassment, the court has shifted the focus from the individual's sex (male or female) to sexuality: "H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality...." Ante at 580. With the much broader focus on sexuality, it seems entirely natural that the court questions "whether it makes a whit of difference why he was singled out for abuse; whether his harassers were motivated by his sex, by his purported sexual orientation, or some other factor, it would seem that he has been harassed sexually and his gender necessarily implied." Ante at 593. After all, "[f]rom [the victim's] point of view, and from the perspective of any reasonable person, the harasser's motives are immaterial." Ante at 579.
Without deciding the issue, the court indicates that no proof beyond the content of the harassment is necessary to satisfy the "because of such individual's sex" element. See ante at 576 ("It is not clear why such proof is needed when the harassment has explicit sexual overtones, however.") Just because the harassment is overtly sexual, however, does not mean that it was motivated by the victim's sex. Again, this is the difference between "sex," as used in the statute to mean a biological fact, and "sexuality," as used by the court to mean sexual overtones, sexual content, sexual character, and so on. In some cases, the words used by a harasser degrade one sex and reveal an obvious discriminatory intent. But for the most part those words are relevant only because they determine whether the harassment is objectively and subjectively abusive enough to fall within the purview of Title VII. The words generally do not answer the crucial threshold question: what motivated the abuse?
In implying the contrary, the court seemingly reasons that because courts in opposite-sex cases have easily found harassment actionable under Title VII where the harassment is explicitly sexual, the mere sexual nature of the harassment by someone of the same sex is sufficient to establish that the harassment was because of the individual's sex. We must emphasize the distinction between comments explicitly sexual, and comments derogatory or focused on one sex. Most of the decisions the court relies upon concern the latter. Ante at 577, nn. 10-11. And therefore those opposite-sex decisions do not support the proposition that the sexual nature of comments creates the inference of sex discrimination. Additionally, these decisions involve the typical situation of a male harassing a female. In these cases the courts were not asked to consider whether the harassment was "because of such individual's sex" because in the typical case the discriminatory nature of the conduct is readily apparent: a woman has been targeted with offensive behavior by a man or men, but no men were targeted, Courts deal with the facts and arguments presented, so the fact that the courts have never questioned whether male-on-female harassment of an explicit sexual nature was "because of such individual's sex" does not mean that we need not look for such proof. Such evidence would be lacking, even if the harassment were explicitly sexual in nature, if the facts of the case demonstrated that the harassment of a worker was motivated not because of the individual's sex, but for some other reason (for example, animus). Such a case would be appropriate for summary judgment.
The court compares sexual harassment to racial harassment (ante at 579-580). But my colleagues misconstrue their own analogy. As the court points out, when a black person is subjected to racial slurs and talk of lynching by white coworkers. "we typically do not ask, `But was he singled out because of his race?'" Of course not. White workers making such statements to a black coworker automatically ignite an inference of racial harassment. But what if the workers involved are all black? If black workers use racial slurs to demean a black coworker, undoubtedly the remarks hurt and are derogatory. But are the racial slurs directed by several black men against another because the victim is black? The reasonable inference is "no." If several blacks hurl racial slurs at another, it is not likely because the target is black. Instead, they probably want to hurt, malign, challenge, or criticize him for some other reason — he was anti-union; he supported the wrong political candidate; he was working too slow, holding up the others — or any reason. Importantly, the reason counts. Without some showing that it was
Nor is same-sex harassment likely sex discrimination. As the court points out, workplace discrimination can be diffused when a supervisor simultaneously harasses subordinates of different racial and ethnic backgrounds choosing an epithet or symbol that will be uniquely hurtful to particular subordinate. Ante at 579-580. That assumes, of course, the supervisor does not share the background that he is derogating. But there are only two sexes. The harasser and the victim must be one or the other. When a male worker is making paltry sexual remarks to or about a male coworker, the automatic response is not that he is saying these things because the target of the offensive talk is male. For a Title VII sexual harassment claim to exist, the target must show more, such as in Yeary and Fredette where a homosexual man was harassing another man because he was a man — a man the harasser found sexually attractive. Otherwise the inference is that the male harasser uses the sexual gutter-talk to mock, hurt, criticize, intimidate, or otherwise denigrate the other male because of some animosity, jealously, antipathy, or even hate. Without more it is unreasonable to infer that the harassment was meted out because he is a male.
My colleagues underscore our divergent views on this subject. "If [Doe] were a woman, there would be no agonizing over whether the harassment the plaintiffs have described could be understood as sex discrimination." Ante at 575. I could not agree more. If Dawe and the coworkers treated a woman coworker this way the immediate inference would be sexual harassment because of her sex. But the court goes on to say "[t]he happenstance that he is instead male should not make for an entirely different analysis, particularly for purposes of a statute that forbids sex discrimination." Id. Wrong. A different analysis is entirely in order. Suppose Dawe and the offending coworkers this hypothetical woman encountered at the graveyard were also all women? The immediate and only reasonable inference is that they are harassing her for a reason other than the fact that she was a woman. Substitute a man in place of the woman victim in all of the opposite-sex cases cited by the court, and we come up with the same inevitable result — the harassment is not because of the victim's sex.
So what kind of evidence is relevant and necessary in a hostile work environment case? The same type of evidence used in any sex discrimination case — evidence establishing the discriminatory nature of the conduct. In the usual case, where a male harasses a female. this is not difficult; a woman is typically targeted by a man or men with offensive behavior and no men are targeted. We ask the same question in a same-sex harassment case: what motivated the harassment? The same proof may exist. The harasser may target only one sex, albeit the same sex. If severe and pervasive that harassment would be illegal. McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir.1985) ("[A]ny harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII."). See also Spain v. Gallegos, 26 F.3d 439, 447, 449 (3d Cir.1994); cf. Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir.1994). For instance, in Yeary the court specifically relied on the fact that the male harasser targeted men, but not women, in holding that same-sex harassment was actionable under Title VII. Likewise in Fredette, the Eleventh Circuit relied on evidence proffered by Fredette "that he was the victim of sexual advances to which members of the opposite gender were not subjected" 112 F.3d at 1505.
Proof of discrimination against the Does because of their sex is made more difficult because the harassment occurred in a single-sex workplace Perhaps it is because there is no gender comparison that this court resorts to the sexual nature of the harassment as proof that the harassment was "because of" the victim's sex. That is no excuse for abandoning the statute. The difficulty of proving discrimination because of the person's sex stems from the reality that when a man
The court also rejects the position suggested in McWilliams, Hopkins, and Wrightson that same-sex harassment is actionable only if the harasser is a homosexual. As in Yeary and Fredette, this would be the most likely scenario for same-sex sexual harassment. But I agree that requiring such a fact to be alleged and proven as part of the prima facie case of sex discrimination would violate the direction in O'Connor v. Consolidated Coin Caterers Corporation, ___ U.S. ___, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), that there be a logical connection between the prima facie case and the prohibited discriminatory criteria. I understand the reason some courts have added proof of homosexuality as an element of a sex discrimination case. As the Supreme Court recognized in O'Connor, "some courts have been induced to [add an element to the prima facie case] to avoid creating a prima facie case on the basis of very thin evidence. ...." In O'Connor, the Supreme Court noted that lower courts had added as an element to the prima facie case of age discrimination proof that the plaintiff was replaced by someone outside the protected class (there under 40). The Supreme Court rejected this prima facie element as not logically related to the question of whether the plaintiff had "lost out because of his age." In doing so, however the Court recognized that without such an element, it would "theoretically permit a case with very thin evidence to proceed (for instance a case where a 40-year-old was replaced by a 39-year-old)." The Court, however, also recognized "the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion...." O'Connor, ___ U.S. at ___, 116 S.Ct. at 1310. For instance, "[i]n an age-discrimination context, such an inference can not be drawn from the replacement of one worker with another worker insignificantly younger." Id. "The discrimination prohibited by the ADEA is discrimination `because of [an] individual's age....'" Id. (quoting 29 U.S.C. sec. 623(a)(1)).
Similarly, as in an ADEA case, here the solution is not to require a new prima facie element — proof that the harasser is a homosexual — but rather to recognize that the evidence as a whole must create an inference that the harassment was "because of such individual's sex." When a man harasses a man or a woman harasses a woman, it is not reasonable to infer that the harassment was "because of such individual's sex," absent probative evidence that the victim's sex was, in fact, the motivation. That is what McWilliams meant in stating: "[W]e do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be `because of' the [victim's] `sex.'" 72 F.3d at 1195-96. And that is the presumption of which Judge Niemeyer spoke in Hopkins. 77 F.3d at 752. As noted earlier, it is not a presumption in the burden-shifting sense, but rather it is the recognition that what is a reasonable inference in opposite-sex cases is not reasonable in same-sex cases.
In this court's view it does not seem to matter if it is same sex or opposite sex; the same inferences arise. But this is only after the court has shifted the issue from the victim's sex in particular to sexuality in general. Once that is done the court disposes of motive as the dispositive question. See ante at 580 ("H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality...."). If the focus of the statute were sexuality and not the victim's sex, perhaps the same inferences could arise in same-sex harassment cases. But given the appropriate focus is the harasser's motive and the individual's sex, I cannot agree with the court's conclusion.
Accepting Meritor's recognition of sexual harassment claims as a form of sex discrimination, we have no choice but to recognize same-sex harassment claims under Title VII. Claims of sex discrimination (and, in turn, sexual harassment) against men by women, or even women by men, may be closer to the purpose of Title VII, but I see no basis for such a limitation in the language of the statute or elsewhere. Rather the limitation under the statute is the facts — how was the harasser's conduct motivated by the victim's sex. The language of the statute is not meaningless; unless the behavior at issue is motivated (at least in part) by the victim's sex, no cause of action can lie. It will be a truly rare case of same-sex harassment where this burden is satisfied. When a man harasses a man, or a woman harasses a woman, an inference does not arise that the harassment was because of the victim's sex. My colleagues assure us that the sky has not fallen, suggesting I suppose that federal courts will not be swamped by men or women claiming harassment by coworkers of the same sex, Perhaps not, but that never was the concern.
29 C.F.R. § 1604.11(a)(1996).
The defendant maintains that plaintiff has no claim of sex discrimination because the firing decision was made by another woman and her replacement was also female. This position reflects a misunderstanding of the laws against discrimination and the evils they were enacted to combat. The fact that a woman fired a woman or a black fired another black does not demonstrate that the supervisor's decision was free of the racial and gender stereotyping that federal law attempts to remove from employers' decisionmaking.
Veatch v. Northwestern Mem. Hosp., 730 F.Supp. 809, 817 (N.D.Ill.1990) (record citation omitted). For the same reasons, we cannot agree that a work environment that on its face is racially hostile to the plaintiff does not, as a matter of law, constitute discrimination "because of" the plaintiff's race simply because the acts of harassment were perpetrated by individuals of the same race as the plaintiff. Although that scenario may not fit comfortably within our preconceived notions of racial harassment, the context of the harassment may nonetheless support the inference that the plaintiff was discriminated against "because of" his race.
Vinson v. Taylor, 760 F.2d 1330, 1333 n. 7 (D.C.Cir.1985) (dissent from the denial of rehearing en banc) (emphasis in original).
It is quite clear, of course, that Judge Bork and his fellow dissenters believed that Title VII did not reach sexual harassment. We do not cite their dissent for that proposition, which the Supreme Court has since rejected definitively. Meritor, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49. It does, however, highlight the problematic nature of an analysis that focuses myopically on the harasser's choice of victims. See McDonnell, 84 F.3d at 260; Chiapuzio v. BLT Operating Corp., 826 F.Supp. 1334, 1337-38 & n. 1 (D.Wyo. 1993); Ryczek, 877 F.Supp. at 761-62. That women historically have been, and still are, the principal targets of sexual harassment in the workplace is one reason (probably the most persuasive reason, in fact) why that harassment is properly understood as sex discrimination. But it is not the only reason. Experiences like that of H. Doe teach us that both men and women can be made the victims of sexual harassment, and that the harms they suffer do not depend on the gender of the harasser or his inclination to target one sex or the other.