homosexuality and sexual attraction are the keys. See Hopkins, 77
F.3d at 752.
2. Treatment of the Opposite Gender
Conversely, in Tanner v. Prima Donna Resorts, Inc.,
919 F. Supp. 351 (D.Nev. 1996), the United States District Court for
Nevada held that "the sexual preference of the parties is
irrelevant to whether a claim is stated." Id. at 356. According
to the court in Tanner, the crucial inquiry is whether the
harasser treats a member or members of one gender differently
from members of the other gender. Id. See Griffith, 887 F. Supp.
3. Type of Work Environment
A third approach focuses on the atmosphere of the work
environment. According to this approach, the only way a male
same-sex sexual harassment plaintiff can win is if he can prove
that his work environment was anti-male. Vandeventer, 887 F. Supp.
at 1181. See Quick v. Donaldson Co., Inc., 895 F. Supp. 1288, 1296
(S.D.Iowa 1995) (explaining that "a male in a male-dominated
environment cannot successfully complain that he was
discriminated against based upon his gender.").
Thus, under the first approach, arguably, Defendant is not
entitled to summary judgment. Although Plaintiff does not assert
that he is homosexual, he does claim that he was discriminated
against because Trees thought he was gay. Thus, it is at least
possible that if Plaintiff was a woman, he would not have been
subjected to the same harassment. Conversely, under the second
and third approaches, Defendant is entitled to summary judgment.
Specifically, in regard to the second approach, because it
was impossible for Trees to treat women differently because none
were present, Plaintiff cannot prove that he was treated
differently from women. Similarly, if the third approach is
applied, Plaintiff obviously cannot show that his work
environment was anti-male.
Unfortunately, there are flaws with all three approaches. The
first approach (sexual attraction) has the problem of relying on
a trait — sexual orientation — that is not actionable under
Title VII and making it the key to what a plaintiff must prove.
The second approach (treatment of opposite gender) is flawed
because by definition it excludes all work environments, like the
one at issue in this case, that are all male or all female. In
other words, if a plaintiff is unlucky enough not to have
co-workers of the opposite sex, his or her claim is barred.
Likewise, the third approach (type of work environment) suffers
from the similar problem of not addressing whether the work
environment is hostile to the individual plaintiff, but instead
focuses on whether the environment is hostile to all workers of
the plaintiff's sex. See Tanner, 919 F. Supp. at 354.
B. Lack of Proof
Flawed or not, the Court must agree with Judge Niemeyer's
conclusion in Hopkins that without proof that a harasser acted
out of sexual attraction, it is very difficult for a plaintiff to
prove a same-sex hostile environment claim.*fn2 See Hopkins, 77 F.3d
at 752 (noting that sexual attraction is the principal way a
plaintiff can meet his or her burden of proof). Thus, the Court
must agree with Defendant that even when the facts are construed
in a light most favorable to Plaintiff, Plaintiff cannot
establish that he was discriminated against because he was a
Specifically, the evidence, as alleged, shows that Trees
subjected Plaintiff to crude and offensive comments because Trees
perceived Plaintiff to be a homosexual. In other words, all the
evidence suggests Plaintiff was harassed not because of his
gender but because of his sexual orientation. See Hopkins, 77
F.3d at 752 (noting that "conduct directed
toward an employee of the same gender as the harasser can have
sexual content or innuendo and, indeed may be offensive. But
unless such harassment is directed toward an employee "because
of" his or her status as a man or a woman, it does not implicate
Plaintiff has failed to present any evidence, beyond mere
speculation, that he would have been discriminated against if
Trees would have perceived him as a heterosexual. Conversely, and
more importantly, Plaintiff has failed to present any evidence
that he was discriminated against because he was a man. Plaintiff
maintains that the harassment was sufficiently egregious because
it alluded to him engaging in sexual acts with other men,
discrimination based on sexual orientation, real or perceived,
however, is simply not actionable under Title VII.
Ergo, Defendant's motion for reconsideration is ALLOWED.
Judgment is entered in favor of Defendant, parties to bear own