to [Schoiber] and continuous sexually explicit and degrading remarks throughout [Schoiber's] employment." (Compl. at P 8.) Further, despite Schoiber's repeated requests for Gonzalez to cease and desist in the harassing conduct, "Gonzalez continued to make unwelcome sexual advances, requests for sexual favors, and engage in other verbal and physical conduct of a sexual nature such that [Schoiber] could not concentrate at work, became anxious and nervous all day, had nightmares, and could not think clearly." (Compl. at P 10.) Schoiber also lodged complaints with Emro, but Emro did nothing to remedy the problem. Finally, in late December 1994, Schoiber resigned from Emro. Nothing in Schoiber's Complaint specifies or refers to the sexual orientation or preference of Gonzalez. The court will not speculate regarding affectation or sexual orientation.
Again, for purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept all allegations a's true. Flynn, 83 F.3d at 925. Further, the court must draw all reasonable inferences in favor of the non-movant. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Rule 12(b)(6) does not provide a procedure for resolving contests about facts or merits of a case; rather, it allows defendants to test the formal sufficiency of statements of claims for relief. American Automotive Accessories, Inc. v. Fishman, 1996 U.S. Dist. LEXIS 12207, No. 95 C 5156, 1996 WL 480369, at *2 (N.D. Ill. Aug. 22, 1996). Because federal courts require mere "notice pleading," the court must construe the pleadings liberally, and mere vagueness or lack of detail alone cannot be sufficient grounds for dismissal. Id. Thus, the test under Rule 12(b)(6) is whether it appears beyond doubt that the plaintiff can prove no set of facts in support of a claim which would entitle him to relief. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996).
A. Individual Liability
In Count I, the count brought pursuant to Title VII, Schoiber seeks "damages against the Defendants, jointly and severally, . . . ." However, Gonzalez cannot be held liable for damages in this case under the applicable Seventh Circuit law. Title VII does not impose individual liability against supervisory employees. Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995). Accordingly, the court dismisses Gonzalez as a defendant to Count I.
B. Same-Gender Sexual Harassment
The bulk of Emro's argument relates to the cognizability of a same-gender sexual harassment claim brought pursuant to Title VII of the Civil Rights Act. To say the least, this argument takes the court into a "murky area of the law." Vandeventer v. Wabash Nat'l Corp., 887 F. Supp. 1178, 1180 (N.D. Ind. 1995). The United States Circuit Courts of Appeals are split on the issue, and the Seventh Circuit has yet to rule. The instant question is not a novel one; U.S. District Judges Milton Shadur and Ann Williams (both sitting in the Northern District of Illinois) addressed the issue fifteen and eight years ago, respectively. Yet, the decisions by the district judges (which were inimical) went unchecked and unreviewed. As a result, district courts located within the Seventh Judicial Circuit are left without guidance or direction from binding superior courts. The debate over "same-gender sexual harassment actionability" is escalating and ripe for circuit precedent. This court holds, for the following reasons, that Title VII does not allow plaintiffs to sue a member of the same gender for sexual harassment.
1. Brief History of Cases
The legal question of whether same-gender sexual harassment is actionable under Title VII first arose in this district. In Wright v. Methodist Youth Servs., Inc., 511 F. Supp. 307 (N.D. Ill. 1981) (Shadur, J.), the district court held that Title VII "should clearly encompass" a same-gender claim. In Goluszek v. H.P. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988) (Williams, J.), another district court held that it should not.
The Fifth Circuit was the first federal appellate court to answer the question. In Garcia v. Elf Atochem North Am., 28 F.3d 446 (5th Cir. 1994), relying upon a previously-issued unpublished opinion, the unanimous Fifth Circuit panel held 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." Id. at 451 (citing Goluszek as persuasive authority). Two years later, a divided Fourth Circuit panel affirmed a trial court's alternative ruling granting summary judgment in favor of defendants on evidentiary grounds, Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996), but left unreviewed the district court's primary finding that "Title VII does not provide 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," Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822, 834 (D. Md. 1994). Approximately two months ago, on July 29, 1996, a two-to-one Eighth Circuit panel held that, in some situations, a male could maintain a sexual harassment claim against another male co-worker. Quick v. Donaldson Co., 90 F.3d 1372, 1380 (8th Cir. 1996).
2. Judicial and Congressional History of Title VII
Congress first enacted Title VII of the Civil Rights Act in 1964. The relevant portion of the statute enacted in 1964 remains intact and unamended: "It shall be an unlawful employment practice for an employer . . . to . . . discriminate 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) (emphasis added). As noted in a plethora of federal judicial opinions, the word "sex" was added to the above sentence as a last-ditch effort by opponents of the statute to thwart the passage of the Act. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984). "Sex as a basis of discrimination was added as a floor amendment one day before the House approved Title VII, without prior hearing or debate." Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (6th Cir. 1977). The effort faltered, "the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on sex." Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).
The Congressional Record is silent as to whether Title VII was to be "all-encompassing." Ulane, 743 F.2d at 1085. Indeed, on numerous occasions, Congressional members attempted to amend Title VII to include "affectation or sexual orientation" as illegal bases for workplace discrimination. Romer v. Evans, 134 L. Ed. 2d 855, 116 S. Ct. 1620, 1637 (1996) (Scalia, J., dissenting) (acknowledging the "plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protection of federal civil rights laws"); Ulane, 743 F.2d at 1085; Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H.R. 5452, 94th Cong., 1st Sess. (1975). All of these efforts failed. Id.
Like sexual orientation harassment, Congress did not specifically include sexual harassment as a cognizable Title VII claim. In 1986, the United States Supreme Court held that a claim of "hostile environment" sexual harassment was a form of sex discrimination actionable under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 73, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).
However, Title VII does not make unlawful all constructs of harassment; the harassment must be "because of . . . sex" and the conduct of the harassing co-worker or supervisor must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 67. Moreover, in Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992), the Supreme Court confirmed that, "without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminate[s] on the basis of sex." Id.
We know from Supreme and Circuit Court decisions that the term "sex," at least as used in Title VII, connotates "gender,"
not sexual preference, identity or orientation. Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (referring to "gender" and "sex" interchangeably); Harris, 114 S. Ct. at 371 (Title VII is violated only when "discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender") (emphasis added); Hopkins, 77 F.3d at 749 n.1; Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084 (7th Cir. 1984).
We also know from case law and the Congressional Record that the principal purpose of including the term "sex" in the Act was to "do some good for the minority sex," 110 Cong. Rec. 2577 (1964), i.e. to promote equal employment opportunity for women in the workplace. Meritor, 477 U.S. at 67 ("Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality"); Connecticut v. Teal, 457 U.S. 440, 448, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982); McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996) ("Sexual harassment was brought under the aegis of Title VII's sex discrimination clause because it makes the workplace difficult for women on account of their sex").
But we on the Northern District bench do not know much more; may Title VII be invoked when the harasser and victim are of the same gender? The answer to that question directs the outcome of the instant motion, and thus the court's primary inquiry focuses on the cognizability of a same-gender claim. And so the court begins that discussion.
3. The Split of Persuasive Authority
The EEOC, Eighth Circuit, and a variety of district courts
have held that same-gender actions are cognizable under Title VII. The EEOC Compliance Manual states as follows:
The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victim's sex (not on the victim's sexual preference) and the harasser does not treat the employees of the opposite sex the same way.
EEOC Compliance Manual, § 615.2(b)(3). While the court is aware "that the EEOC is charged by Congress with interpreting, administering, and enforcing Title VII," it is not bound by the EEOC's stance on the issue.
Waag v. Thomas Pontiac, Buick, GMC, Inc., 930 F. Supp. 393, 396 (D. Minn. 1996).
In deciding whether same-gender sexual harassment is actionable, the Eighth Circuit focused on the five-element sexual harassment test established through a series of circuit court opinions. Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996). According to the Quick court, plaintiffs must establish five requirements: that "(1) he belongs to a protected group;
(2) he was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action." Id. at 1377. The Quick district court found that harassment by a person of the same gender as the victim was not, as a matter of law, "based on sex." The circuit court reversed; "the proper inquiry for determining whether discrimination was based on sex is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 1379. According to the Eighth Circuit, facts can exist to warrant a same-gender sexual harassment claim. Id.8
Judge Harry D. Leinenweber of this district similarly found that same gender claims are actionable under Title VII. In Ton v. Information Resources, Inc., 1996 U.S. Dist. LEXIS 51, No. 95 C 3565, 1996 WL 5322 (N.D. Ill. Jan. 3, 1996) (Leinenweber, J.), the district court implicitly adopted the EEOC's stance on the issue and took its turn poking holes in the Goluszek decision. More specifically, the Ton court noted that "nothing in the language or legislative history of Title VII indicates that same-sex harassment is not prohibited,"
and pointed out the alleged "asymmetry" of allowing reverse race-discrimination claims but not same gender sexual harassment claims.
Id. at *7. On September 6, 1996, U.S. District Judge Suzanne Conlon concurred with Judge Leinenweber, and found same-gender sexual harassment to be actionable. Peric v. Board of Trustees of the Univ. of Ill., 1996 U.S. Dist. LEXIS 13042, No. 96 C 2354, 1996 WL 515175 (N.D. Ill. Sept. 6, 1996).
The Fourth Circuit had the opportunity to speak twice on the issue, but declined to hold that all same-gender sexual harassment claims are not actionable. First, in McWilliams v. Fairfax Co. Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996), the Fourth Circuit held that heterosexual-male-on-heterosexual-male sexual harassment claims do not fall within Title VII proscriptions since the harassment was not "because of" the target/victim's sex. Id. at 1196. In support of the holding, the author penned:
The difficulty of construing this causation language to reach such same-sex claims and the commonsense of not doing so are emphasized when the practical implications are considered. That this sort of conduct is utterly despicable by whomever experienced; that it may well rise to levels that adversely affect the victim's work performance; and that no employer knowingly should tolerate it are all undeniable propositions. But to interpret Title VII to reach that conduct when only heterosexual males are involved as harasser and victim would be to extend this vital statute's protections beyond intentional discrimination "because of" the offended worker's "sex" to unmanageable broad protection of the sensibilities of workers simply "in matters of sex." We cannot believe that Congress in adopting this critical causation language and the Supreme Court in interpreting it to reach discrimination by the creation of hostile workplace environments could have intended to reach such situations. There perhaps "ought to be a law against" such puerile and repulsive workplace behavior even when it involves only heterosexual workers of the same sex, in order to protect the victims against its indignities and debilitations, but we conclude that Title VII is not that law.