The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, SR., District Judge:
Title VII of the Civil Rights Act proscribes sexual harassment of one gender by the other. Period. A claim for same-gender sexual harassment is not cognizable under Title VII.
As a preliminary matter, the court notes that its opinion in this case addresses only one issue: whether Title VII prohibits sexual harassment, as opposed to general gender discrimination, among members of the same gender. The court will develop this distinction more fully infra. With that caveat, the court addresses the motion.
This is an unusual case in which the question of law overshadows the facts of the case. While the alleged activities may be despicable and abhorrent, they are not of legal significance unless they lead to a cognizable avenue for recovery. Nevertheless, the court will begin its discussion with a terse rendition of the relevant facts.
Plaintiff Robert Schoiber's ("Schoiber") First Amended Complaint ("Complaint") contains three counts. Schoiber worked for Defendant Emro Marketing Company ("Emro") as an employee at a Speedway convenience store. He alleges that he was repeatedly sexually harassed by his store manager, Defendant Edward Gonzalez ("Gonzalez"). Counts II and III are state law intentional tort claims. Count I, the count invoking federal jurisdiction, is brought pursuant to Title VII of the Civil Rights Act, specifically 42 U.S.C. § 2000e-2(a)(1).
The court must accept Schoiber's allegations as true for purposes of a motion to dismiss, Flynn v. Kornwolf, 83 F.3d 924, 925 (7th Cir. 1996). He alleges that Gonzalez's "harassment consisted of unwanted physical touching, grabbing, kissing, exposing himself 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).
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 ...