70 West Madison St.
Chicago, Illinois 60602
SEXUAL HARASSMENT AND HOMOSEXUALITY
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).
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.
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
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.
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.
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).
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
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.
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
response once it learned of the harassment.
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.
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
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.
Golan & Christie LLP
70 West Madison St.
Chicago, Illinois 60602