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.
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 ...