The opinion of the court was delivered by: Richard Mills, District Judge:
A male supervisor allegedly makes a series of offensive
comments about a male employee having sex with other men.
Does the supervisor's conduct create a hostile work
environment actionable under Title VII?
Plaintiff James Shermer, at the time in question an employee
of the Illinois Department of Transportation (IDOT), contends
that he was subjected to a sexually offensive and hostile work
environment because IDOT supervisor, John Trees, repeatedly
between May of 1993 and August 17, 1993 made sexually offensive
remarks in the presence of Plaintiff and other IDOT employees
about Shermer engaging in sexual acts with members of his own
On July 31, 1996, this Court denied Defendant's motion for
summary judgment. The basis of the Order was that same-sex sexual
harassment is actionable under Title VII.
Defendant now seeks reconsideration arguing that although
same-sex sexual harassment may be actionable, it is not
actionable in this case because there is no evidence that
Plaintiff was discriminated against based upon his gender.
Specifically, Defendant maintains that Plaintiff and Trees worked
on an all male crew and that "[t]here is not, and cannot be, any
evidence that female workers were treated differently." Defendant
also notes that there is no evidence suggesting Trees or any
other IDOT employee did anything more than make comments about
Plaintiff engaging in sexual activity with other men.
Moreover, according to Plaintiff, there is no requirement
that he prove he was treated differently than women. Plaintiff
maintains he is only required to prove the existence of offensive
conduct based upon sex that creates a hostile environment
As was recently noted by the United States District Court for
the Northern District of Indiana, if and when same-sex sexual
harassment is actionable is an issue that will ultimately be left
to the courts of appeals and the United States Supreme Court.
Vandeventer v. Wabash National Corp., 887 F. Supp. 1178, 1182
(N.D.Ind. 1995). Unfortunately for both the parties and the
Court, however, the various courts of appeals have been slow to
act and are divided. Compare McDonnell v. Cisneros, 84 F.3d 256,
260 (7th Cir. 1996) (noting that "a difference in sex is not a
necessary condition of sexual activity and hence (most courts
think) of sexual harassment.") with Garcia v. Elf Atochem North
America, 28 F.3d 446, 451-52 (5th Cir. 1994) (explaining that
harassment by a male supervisor against a male subordinate does
not state a claim under Title VII even though the harassment has
sexual overtones because Title VII addresses gender
Compounding the problem is the fact that "[d]istrict courts
across the country are deeply divided on whether Title VII
applies to same-gender sexual harassment," Hopkins v. Baltimore
Gas and Elec. Co., 77 F.3d 745, 751 (4th Cir. 1996), and more
importantly, that the United States Court of Appeals for the
Seventh Circuit has stated that same-sex sexual harassment is
probably actionable in an appropriate case, but has failed to
even hint at what constitutes an appropriate case. See
Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.
In other words, although it is probable that same-sex sexual
harassment is actionable within the Seventh Circuit, how the
Court should analyze whether this case is actionable is far from
clear. What is clear, however, is that Plaintiff must ultimately
establish that he was sexually harassed because of his sex.
Griffith v. Keystone Steel and Wire, 887 F. Supp. 1133, 1137
(C.D.Ill. 1995). Moreover, in this context, the term "sex" means
"gender". Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41, 109
S.Ct. 1775, 1784-86, 104 L.Ed.2d 268 (1989) (using "gender" and
"sex" interchangeably).*fn1 See McDonnell, 84 F.3d at 260 ...