SEXUAL HARASSMENT AND HOMOSEXUALITY
The prohibition of
Title VII of the Civil Rights Act of 1964 against sex discrimination does not
protect transsexuals where the plain meaning of the prohibition implies that it
is unlawful to discriminate against women because they are women and against men
because they are men. In the
context of Title VII=s
prohibition against discrimination, Asex@
means membership in a class delineated by gender; it does mean sexual
orientation, preference, identity, affiliation, or behavior.
Plakio v. Congregational Home, Inc., 902 F.Supp. 1383 (D. Kan.
1995). People who are asked because
they are homosexual or are perceived as homosexual are not protected by Title
VII anymore than people who are harassed for having brown eyes; being homosexual
does not deprive someone of protection from sexual harassment under Title VII,
but is merely irrelevant to it. Vandeventer
v. Wabash Nat=l
Corp., 887 F.Supp. 1178 (N.D. Ind. 1995).
However, many courts
have held that same sex sexual harassment that consists of homosexual advances
is made on the basis of gender and may be actionable under Title VII.
For example, when a homosexual supervisor makes offensive sexual advances
to a subordinate of the same sex, and not doing so to employees of opposite sex,
it absolutely is a situation where, but for the subordinate=s
sex, he would not be subjected to the treatment.
EEOC v. Waldon Books Co., 67 FEP 1446.
Nothing in the body of
Title VII limits its protection to heterosexual harassment.
On the contrary, the language of the statute is non-exclusive creating a
broad rule of workplace equality. Therefore,
Title VII encompasses circumstances such as a male employee=s
claim that he was sexually harassed by his male supervisor.
Moreover, Title VII protections are invoked if a bi-sexual supervisor
singles out employees of one sex for harassment.
Raney v. District of Columbia, 68 FEP 1620.
A female employee can
establish that harassment of her was based upon sex by showing that her harasser
harassed only women and thus did not treat men in a similar fashion; and,
therefore, ruling that homosexual sexual harassment can violate Title VII.
McCoy v. Johnson Controls World Services, 67 FEP 1763.
The case of a male
employee who claimed that he was discharged for refusing the sexual advances of
a male supervisor presents the obverse of the coin of heterosexual harassment
which is prohibited under Title VII. Wright
v. Methodist Youth Services, 25 FEP 563 (D.C. Ill. 1981).
However, distinguishing
between harassment of individuals of the same sex by homosexuals or bisexuals
and harassment by heterosexuals, courts have held that no viable Title VII claim
was stated against a man for a hostile environment created by male co-employees
who tormented him with sexually offensive comments and physical assaults absent
allegations of homosexuality. Title
VII requires that the harassment be because of the victim=s
sex. Therefore, heterosexual male
on heterosexual male conduct does not fit within the purview of the statute.
McWilliams v. Fairfax County Board of Supervisors CA, 69 FEP 1082.
EMPLOYER LIABILITY
Employer liability may
depend on whether the alleged sexual harassment is classified as quid pro quo or
hostile environment. In a case of
hostile environment sexual harassment, liability may hinge on whether the
employer had actual or constructive knowledge of the harassment and on the
reasonableness of the employer=s
response once it learned of the harassment.
Generally speaking, an
employer will be liable to employees who suffer economic harm as a result of
quid pro quo harassment if the harasser had actual authority to alter the victim=s
work conditions, regardless of whether the employer had knowledge of the
harassment when it occurred.
In hostile environment
sexual harassment, employers are liable only if they knew or should have known
about the harassment and they failed to take prompt and reasonable remedial
action to correct the situation. See
Meritor case.
RETALIATION
Title VII prohibits
retaliation against an employee who files a discrimination charge or who opposes
discriminatory employment practices. If
an employer retaliates after an employee files a charge or sexual harassment, a
second charge for retaliation may be filed.
The prohibition also protects employees who have communicated an intent
to file a charge, who have testified on behalf of a co-worker who filed a sexual
harassment charge, who have refused to testify on behalf of the employer, or who
have filed charges against other employers.
Employees who are not the direct victims of sexual harassment, but who
oppose it or report it on behalf of another employee also are protected by Title
VII from retaliation. Conduct that disrupts the workplace or that seriously affects
the opposer=s
job performance is not protected.
Andrew
S. Williams
Aronberg Goldgehn Davis & Garmisa
One IBM Plaza, Suite 3000
Chicago, Illinois 60611
312/755-3145
awilliams@agdglaw.com
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