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August 30, 1996


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?

Not in this case.


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 sex.

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.

In response, Plaintiff asserts that the fact it was an all male crew does not prevent him from proving to a jury that he was discriminated against because he was a man. According to Plaintiff, the hostile environment was created solely because he is a man. In particular, Plaintiff asserts that "[i]n the case at bar the conduct at issue although offensive becomes sufficiently egregious to alter adversely the conditions of his employment not merely because it is conduct of a sexual nature, but rather because of the sex of the Plaintiff since it alludes to the Plaintiff engaging in sexual acts with individuals of his own sex."

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 discrimination).

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. 1995).

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 ...

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