Plaintiff Jose Torres ("Torres") worked for Defendant National Precision Blanking ("National"). Torres alleges that a co-worker, Larry Bond ("Bond"), engaged in "lewd and obscene homosexual acts," including "inserting his finger into [Torres'] rectum, bragging about how much of his finger he was able to insert into [Torres'] rectum, and walking around the plant floor holding his penis and asking male employees whether they wanted a piece of it." (Compl. at P6.) Torres "complained repeatedly" to his Plant Manager, but National management did nothing but "laugh about these incidents and treat them as a joke." (Compl. at PP7-8.) Torres then filed a charge with the Equal Employment Opportunity Commission, and subsequently filed the instant lawsuit. Torres, who continues to work for National, alleges that Bond's conduct created a hostile work environment and, thus, gave rise to a claim under Title VII. National argues that a same-gender sexual harassment claim is not cognizable under Title VII. The court, for the same reasons discussed in Schoiber v. Emro Mktg. Co., 941 F. Supp. 730, 1996 U.S. Dist. LEXIS 14723, No. 95 C 5726 (N.D. Ill. Oct. 3, 1996), agrees with National.
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); GCIU Employer Retirement Fund v. Chicago Tribune Co., 66 F.3d 862, 864 (7th Cir. 1995). Where the facts as alleged and as proven do not lead to an avenue of recovery, ie. are not actionable, summary judgment should be entered in favor of the defendant. Gavery v. Altheimer & Gray, 1996 U.S. Dist. LEXIS 13240, No. 95 C 2747, 1996 WL 521400, at *2 (N.D. Ill. Sept. 11, 1996); Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1996 U.S. Dist. LEXIS 13400, No. CIV. A. H-95-5426, 1996 WL 526272, at *27 (S.D. Tex. Sept. 10, 1996).
A. Same-Gender Sexual Harassment1
The bulk of National'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, 742 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, 742 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.