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May 12, 1995


The opinion of the court was delivered by: Mihm, Chief Judge.


This matter comes before the Court on Defendant Keystone's Motion to Dismiss Complaint (# 68) and Motion for Summary Judgment (# 69). The Court has also raised a subject matter jurisdiction issue sua sponte. The Court ordered the parties to brief the issue of whether Title VII provides a cause of action for an employee who claims to have been the victim of sexual harassment by a supervisor or co-worker of the same gender. The Court's request prompted Keystone's Motion to Dismiss (# 89), Charlie Cutting's Motion to Dismiss Count III (# 91), and Langley, Scoby, Jay, and Eberly's Supplemental Motion to Dismiss Counts VI-VII, XI-XIV & XVIII-XXI of the Amended Complaint (# 86). For the reasons set forth below, the Court holds that Title VII does not bar a same-sex sexual harassment suit, and Defendants' Motions to Dismiss on that issue are DENIED (# 86, # 89, # 91). Keystone's Motion to Dismiss (# 68) and Motion for Summary Judgment (# 69) are GRANTED.

Same-Sex Sexual Harassment Under Title VII

When considering a motion to dismiss, the Court accepts the factual allegations of the complaint as true and draws all reasonable inferences from the allegations in the plaintiff's favor. Wiemerslage v. Maine Tp. High School Dist. 207, 29 F.3d 1149, 1151 (7th Cir. 1994). A motion to dismiss will only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Griffith, a maintenance electrician for Keystone, alleges that between October 1992 and early January 1993, he was continually subjected to sexually suggestive comments and improper physical sexual contacts by Defendant Charlie Cutting, a foreman, under the supervision of or with the knowledge of foremen, supervisors, or managers, Defendants Lee Langley, Harold Scoby, Rick Jay, and Eric Eberly. Defendants contend that same-sex sexual harassment is not actionable under Title VII.

In Goluszek v. Smith, 697 F. Supp. 1452, 1456 (N.D.Ill. 1988), the court held that even if the male plaintiff was harassed by male co-workers "because" he was male, that "was not the type of conduct Congress intended to sanction when it enacted Title VII." See also Garcia v. Elf Atochem North America, 28 F.3d 446, 451-52 (5th Cir. 1994)*fn1; Benekritis v. Johnson, 882 F. Supp. 521 (D.S.C. 1995); Myers v. City of El Paso, 874 F. Supp. 1546 (W.D.Tex. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822 (D.Md. 1994); Polly v. Houston Lighting & Power Co., 803 F. Supp. 1, 6 (S.D.Tex. 1992). The Goluszek court found that Title VII is concerned with a "dominant" gender's atmosphere of oppression. Goluszek, 697 F. Supp. at 1456. The court granted summary judgment against Goluszek on his sexual harassment claim because he was a male in a male-dominated environment and thus, could not show that he worked in an environment that treated males as inferior. Id. Another district court has adopted this same reasoning and granted summary judgment against a male plaintiff who could not show that he worked in an "anti-male" atmosphere. Vandeventer v. Wabash Nat. Corp., 867 F. Supp. 790, 796 (N.D.Ind. 1994).*fn2 Although stating that same-sex harassment is never actionable under Title VII, the Goluszek and Vandeventer courts also believed that whether a male plaintiff could show that his work environment was "anti-male" or not male-dominated was relevant.

After considering the statute and the applicable case law, the Court holds that same-sex sexual harassment is prohibited by Title VII for several reasons. First, a recent statement by Chief Judge Posner, although dicta, indicates how the Seventh Circuit might rule on this issue:

    Sexual harassment of women by men is the most
    common kind, but we do not mean to exclude the
    possibility that sexual harassment of men by women,
    or men by other men, or women by other women would
    not also be actionable in appropriate cases.

Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995).

Moreover, when ascertaining the intent of Congress, courts must begin with the statutory language. Norfolk and Western Ry. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 127-29, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991). Title VII prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). It is well recognized that Title VII protects both males and females from sexual harassment in the workplace. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (Title VII "evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women.'"); Ulane, 742 F.2d at 1084 ("[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men."); Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982); Showalter v. Allison Reed Group, Inc., 767 F. Supp. 1205, 1211 (D.R.I. 1991); Joyner v. AAA Cooper Transp., 597 F. Supp. 537, 542 (M.D.Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984). The plain language of Title VII simply does not restrict its prohibition against discrimination to employees of the opposite sex.*fn3

Furthermore, while the number of male and female workers in a work environment may be relevant in assessing the impact of sexual harassment, such a showing is not essential to prevail on a sexual harassment claim.*fn4 Griffith has alleged both hostile work environment and quid pro quo sexual harassment. To succeed on a Title VII claim against an employer based on hostile work environment sexual harassment, an employee must show that (1) he was a member of a protected class; (2) he was subjected to unwelcome sexual harassment in the form of sexual advances, request for sexual favors or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based upon sex; (4) the defendant's conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment; and (5) the employer knew or should have known of the harassment and failed to take appropriate corrective action. Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990). In a quid pro quo sexual harassment case, a plaintiff must prove that an economic benefit was linked to participation in conduct of a sexual nature. Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1453 (7th Cir. 1994). "The gender of the person who requests such favors is not relevant." Prescott, 878 F. Supp. at 1550. "The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'" Meritor, 477 U.S. at 68, 106 S.Ct. at 2406 (quoting 29 C.F.R. § 1604.11(a) (1985)). "To be sure, sexual advances can be `unwelcome' regardless of the harasser's gender." McCoy v. Johnson Controls World Services, Inc., 878 F. Supp. 229 (D.Ga. 1995).

Griffith must ultimately establish that he was sexually harassed "because of his sex." Henson, 682 F.2d at 903-04. In other words, that but for the fact of his sex, Griffith would not have been the object of harassment. Id. at 903. Griffith can establish that the harassment was "based upon sex" by showing that his harasser only harassed men, and thus, did not treat women in a similar fashion. McCoy, 878 F. Supp. 229.

Griffith's Amended Complaint alleges that he was continually subjected to sexually suggestive and derogatory comments and improper physical sexual contacts by Defendant Cutting. Amended Complaint, Counts I-VII, ¶ 8. The Amended Complaint further alleges that these acts of sexual harassment included unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature by Defendant Cutting which substantially interfered with Griffith's working environment and submission to which was demanded of Griffith in exchange for favorable working conditions or terms. Amended Complaint, Counts I-VII, ¶ 9. Paragraph 10 of Griffith's Amended Complaint alleges that "employees of the opposite sex were not subjected to acts of harassment described in paragraphs 8 and 9 and Plaintiff was subjected to such harassment substantially on the basis of his sex." As Griffith has alleged that he was subjected to unwelcome sexual harassment because of his sex that was not directed to female employees, he states a claim ...

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