King v. Board of Regents of the University of Wisconsin System

MANION, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion to the extent it holds defendants free of liability. However, I disagree with the majority’s conclusion that Steven Sonstein violated the Equal Protection Clause of the Fourteenth Amendment when he sexually harassed Catherine King.

In the fall of 1980, King was serving her first term as a faculty member. She described Sonstein as being very helpful and “appreciated Dean Sonstein’s advice because she believed he was acting in good faith and he was the only supervisory level professor who took the time to talk with her.” However, by November the conversations turned from helpful hints to sexual overtures. Between November and January there were several unwelcome advances, one of which was intolerable. In January, in a straightforward meeting with Sonstein, King set him straight, and demanded that such conduct cease. After that, for the most part Sonstein’s overtures, inept, boorish, or uncouth as they may have been, ended. A year or so later King accused Sonstein of retaliating against her when he claimed she was using the copy machine for personal matters, but that was resolved with an administrative settlement.

The pivotal question is whether the apparent hostile atmosphere resulted from Sonstein’s discriminatory treatment of King based on her membership in a class— female, as in Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir.1986) — or whether it was confined to a “group” of persons (King) with whom Sonstein had sought to have a romantic affair as in Huebschen v. Dept. of Health and Social Services, 716 F.2d 1167 (7th Cir.1988). The majority states that Sonstein “claims that King was not a member of a protected class as she was simply a member of the class of people whom Sonstein desired to have an affair with. But King was and remains a woman. That is all that is required.” Majority opinion at 538. The majority cites Volk v. Coler, 845 F.2d 1422 (7th Cir.1988). But neither Volk nor Bohen says that being a woman is all that is required. Rather, these cases require harassment of the individual plaintiff because of her gender.

It does not appear that Sonstein harassed King because, for example, he did not like having women in the department. Rather, he harassed King because he was physically attracted to her albeit because she was, in his mind, an attractive woman. Hueb-schen held that “the proper classification, if there was one at all, was the group of persons with whom [defendant] had or sought to have a romantic affair.... [W]e simply are not persuaded that the Equal Protection Clause should protect such a class.” Huebschen, 716 F.2d at 1172 . Although there is some evidence that Son-stein made snide remarks and some minor overtures to other women faculty, Sonstein put King in a class by herself as his romantic target. The only way Huebschen would not apply is if we were to say that the classification of the target of a romantic affair applies only to men and not to women. Obviously such is not the case.

Sonstein’s boorish advances were confined to King on account of his attraction to her personal qualities. Sonstein harassed Katherine King because she was Katherine King, not because she was female. “In an Equal Protection claim, the petitioner faces the tougher standard of proving purposeful and intentional acts of discrimination based on her membership in a particular class, not just on an individual basis.” Forrester v. White, 846 F.2d 29, 32 (7th Cir.1988). Such activity may be actionable, but not as a violation of the U.S. Constitution. Because I believe Hueb-schen controls the disposition of the claim against Sonstein, I respectfully dissent.