On July 17, 1997, a three-judge panel of the United States Court of Appeals for the Seventh Circuit in Chicago joined the growing fray when it explicated an extremely liberal standard for bringing same-sex sexual harassment cases involving heterosexual males under Title VII of the Civil Rights Act of 1964. In Doe v. City of Belleville, Illinois, the court held that sexual harassment of a man by other men in the workplace is actionable under Title VII. This decision places this circuit squarely in the forefront of expansive and liberal approaches to this growing area of discrimination law, just as the U.S. Supreme Court prepares to consider the subject this term in Oncale v. Sundowner Offshore Services, Inc.
In Doe, twin, sixteen year-old brothers were hired by the City of Belleville, Illinois to cut weeds and grass in the municipal cemetery; they worked with a regular crew of male co-workers, including a male supervisor. From the beginning of their employment, both were subjected to "a relentless campaign of harassment by their male co-workers," including the supervisor. One twin, who was overweight, was nicknamed "fat boy" by the crew, and the other, who wore an earring, was nicknamed the "fag" or the "queer." Both brothers were subject to daily, verbal abuse and ridicule using these references, as well as suggestions that their sex was ambiguous because of their appearance and mannerisms, that the only way to test their sex was to take them "out to the woods" for sexual activity, that they had engaged in sexual activity together, all culminating in a physical act by one of their fellow employees who, in order "to finally find out if you are a girl or a guy," grabbed the resisting twin by the testicles and announced to the assemblage of co-workers that he had confirmed that the employee was male.
The district court granted summary judgment in favor of Belleville, reasoning that, because both Does and their harassers were heterosexual males and the workplace was an all- male environment, the twins could not show that they were harassed "because of " their sex.
The Seventh Circuit reversed, concluding that both twins were entitled to a trial on their sexual harassment claims. The court set up three questions to be answered by its analysis, as follows: "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?... 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?"
On the first issue, the panel concluded that Title VII does not exclude from its purview men who are sexually harassed by other men, since the language of Title VII does not purport to limit who may bring suit on the basis of the sex of either the harasser or the person harassed. On the issue whether same-sex harassment had occurred "because of " the twins' sex, the majority found that one could reasonably infer from the evidence that the twins were harassed "because of" their gender, notwithstanding that none of the harassers was homosexual, noting that "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." While observing that 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, i.e., discriminatorily, the majority found it unnecessary to prove discriminatory treatment when the harassment has explicit sexual overtones, as in the case before it. The harassment complained of did not merely fall into the category of general unpleasantness, generic shop talk, horseplay or rough language, but rather was explicitly sexual, revolving around gender and specifically alluding to sexual conduct. In such cases where the harassment is inseparable from the victim's gender, the harasser's motives are immaterial, since the environment is hostile and the hostility is inescapably and irrevocably linked to the victim's gender. In such circumstances, the majority on the panel found that one could reasonably infer that the harasser's motivation was to humiliate the victims as men, i . e., on the basis of their gender.
The court then suggested that the gender-linkage in this case could be proved solely by the fact that one of the twins (with the earring) was singled out for his abuse because of the way in which he projected the sexual aspect of his personality, which did not conform to his coworkers' view of appropriate masculine behavior. The majority stated that "the man who was harassed because his voice is soft, his physique is slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that does not meet his co-workers' [stereotyped] idea of how men are to appear and behave, is harassed 'because of' his sex."
The most disturbing aspect of the majority decision in Doe may be the extreme difficulty, as a practical matter, of applying the "bright line" which the majority believed it was drawing between non-actionable, workplace horseplay and actionable same-sex sexual harassment in the workplace. Without the burdensome necessity of establishing discriminatory treatment or any evidence of motive, a plaintiff fed up with pervasive same-sex horseplay in particular "unisex" work places may seize upon the availability of the defense of one's "sexuality" as a means to gain redress which otherwise would be unavailable to him or her.
On August 28, 1997, apparently in an effort to illuminate the necessary "bright line" in these cases, the Seventh Circuit decided Johnson v. Hondo, Inc. d/b/a Coca-Cola Bottling Company of Wisconsin, in which it affirmed the district court's grant of summary judgment to the employer in a same sex sexual harassment case brought on the basis of conduct by one male dock loader against another. Both employees were terminated after a physical altercation between them which was the culmination of a series of workplace incidents involving mutual, sex-based insults and remarks in an all-male work environment. The alleged harassee, Johnson, claimed that his harasser, Hicks, frequently told him that he would force him to commit a sexual act with him, and accompanied the remark with grabbing motions to his crotch. The harasser also made comments about Johnson's fiancee, stating that he would have her perform the same sexual act because of her favorable appearance to him, expressed in fantasy terms. In return, the harassee referred to Hicks as a "punk," "faggot," "fag" and "S.O.B.," the former three terms all connoting a vulgar, homosexual sort of reference. Until the fight, neither employee physically touched, threatened nor exposed himself to the other, nor called the other at home, nor sent the other anything in writing. The Seventh Circuit affirmed the district judge's ruling that Johnson failed to raise a genuine issue of material fact as to whether Hicks harassed him because of his gender, finding that he did not. The Seventh Circuit found that, other than the sexual content of Hicks' remarks, there was absolutely nothing in the record supporting a reasonable inference that his remarks were directed at Johnson because of his gender. The court found that the explicit sexual and vulgar comments made by Hicks inviting sexual acts with Johnson and Johnson's fiancee were "commonplace in certain circles" and usually, when uttered by men speaking to other men, have no real connection to the sexual acts to which they refer, even when accompanied by other gestures. The court found Hicks' invitations to be "simply expressions of animosity or juvenile provocation. . . ." Similarly, the court found that Hicks' usage of derogatory terms for homosexuals had no harassing component. The court distinguished its decision in Doe v. Belleville on the basis that in that case the victims were confronted with an assortment of physical and verbal attacks all of a gender-based nature including expressions of hostility to the way in which the victim exhibited his sexuality. Contrasting the totality of harassment present in the Doe case, the court found the conduct in Johnson to be "nothing other than vulgar provocations having no causal relationship to Johnson's gender as a male." As its guide for future reference, the court defined its test in same sex sexual harassment cases, as in opposite sex situations, to be whether the treatment meted out created a hostile work environment because the victim was singled out because of his or her gender, and if so, whether the totality of the circumstances, including the nature of the harassment and the context in which it occurred, constituted treatment so severe and pervasive as to alter the conditions of the victim's employment in a significant way. In this regard, it should be noted that both courts in Johnson characterized the dispute between the employees as a personal grudge match between two workers, neither of whom was intimidated by the other.
Notwithstanding the Seventh Circuit's effort to define a bright line standard, employers after Doe and Johnson are left with an extremely nebulous, vague (and liberal) standard for same sex sexual harassment, dependent not on the motive of the harasser, sexual orientation of the harasser and/or victim, or even the overtly sexual nature of the harassment, since actions directed at the perceived sexual aspects of the personality of the victim may suffice to provide the link to gender otherwise required by Title VII.