Phil Quick v. Donaldson Company, Inc.

NANGLE, District Judge,

dissenting.

I respectfully dissent. I believe that the majority opinion sets a precedent for improperly expanding Title VII to cover any form of harassment experienced in the workplace. Although a cause of action may lie under various state laws, I do not believe that a cause of action exists under Title VII for the type of conduct that is alleged to have occurred in this case. 1

In McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (4th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3839 (U.S. June 10, 1996)(No. 95-1389), the Court held that harassment against a heterosexual male by his heterosexual male co-workers did not state a hostile work-environment sexual harassment claim under Title VIL McWilliams’ co-workers purportedly subjected him to both verbal taunts and physical assaults of a sexual nature. Id. at 1193. The Court reasoned that such harassment was not “because of the [claimant’s] sex”. Id. at 1195. “As a purely semantic matter, we do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be ‘because of the [target’s] ‘sex ’ ’.” Id. at 1195-96. The Fourth Circuit offered several alternative reasons that a heterosexual could be targeted for such harassment by other heterosexuals including characteristics of the victim (such as known prudery or shyness), and characteristics of the perpetrators (such as perversion, insecurity or vulgarity). Id. at 1196. “But to interpret Title VII to reach that conduct when only heterosexual males are involved as harasser and victim would be to extend this vital statute’s protections beyond intentional discrimination ‘because of the offended worker’s ‘sex’ to unmanageably broad protection of the sensibilities of workers simply ‘in matters of sex.’ ” Id.

The obvious distinction between McWil-liams and this case is that there is no evidence that other heterosexual males were subject to the same harassment in McWil-liams while, in the instant case, many other heterosexual males were exposed to “bagging” at Donaldson. Quick may be more like McWilliams, however, than he appears to be at first blush. The majority opinion notes that Quick claims that he was assaulted by male co-workers on two occasions.. On one occasion, workers purportedly grabbed Quick’s testicle producing swelling and bruising and, on another occasion, Quick alleges that he was punched in the neck during an argument. In addition, Quick asserts that he *1381 was verbally harassed, labeled a homosexual, and called a “fucking scab” by a co-worker for having withdrawn his union membership. Accordingly this case, upon closer examination, appears to be similar to McWilliams in the sense that heterosexual males singled out another unpopular heterosexual male for harassment. Although this conduct is reprehensible, it does not state a hostile work environment sexual harassment claim under Title VII. 2

All of the Eighth Circuit eases relied on by the majority involve the traditional scenario of a male supervisor or male co-workers harassing female employees. See Stacks v. Southwestern Bell Yellow Pages, 27 F.3d 1316 (8th Cir.1994) (male supervisor harassing female subordinate); Kopp v. Samaritan Health System, Inc., 13 F.3d 264 (8th Cir.1993) (male doctor harassing female technician); Bur ns v. McGregor Electronic Industries, Inc. 989 F.2d 959 (8th Cir.1993) (female employee harassed by male employer); Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir.1988) (male co-workers harassing female employees). It is important, however, that we distinguish between these type of cases and the ease presently before the Court. The “because of sex” element is implied in these cases, not because there is a predominantly male or anti-female environment, but because “sexual behavior directed at a woman [by a man] raises the inference that the harassment is based on her sex”. Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559, 564 (8th Cir.1992). Such an inference is not raised when heterosexuals of one gender harass other heterosexuals of the same gender. This is because in the traditional situation,

[t]he causal link between the supervisor’s conduct and the victim’s harassment is the victim’s gender_ In a same-gender sexual harassment case, however, conduct of a sexual or gender-oriented nature can not be presumed to be discriminatory.... When the alleged offender and the alleged victim share the same gender, similar sexually suggestive words and acts can take on a whole other meaning.

Easton v. Crossland Mortgage Corp., 905 F.Supp. 1368, 1382-83 (C.D.Cal.1995). In this case, the “bagging” incidents would surely be viewed in a different light if male employees were making similar gestures and touches toward female employees. When this conduct occurs between heterosexual males one is struck by the vulgarity of these actions. If this conduct were to occur to females by males, however, the impression is entirely different and the inference of sex discrimination is raised.

The fundamental difference between this dissent and the majority seems to be who should decide whether a cause of action lies for such conduct — the court or the jury. I contend that the question is purely a question of law for the court because it is, at its essence, a question of statutory interpretation. 3 See United States v. Moore, 38 F.3d 977, 979 (8th Cir.1994) (“[T]he task of statutory interpretation is one best placed in the hands of the trial judge”). The majority seems content to let the jury decide based upon an application of factors used in traditional hostile work-environment sexual harassment claims. I cannot agree with this approach. Accordingly, I dissent and would *1382 affirm the judgment of the district court for the reasons stated herein.

. Donaldson noted at oral argument that it was not arguing that same sex sexual harassment is never covered by Title VII. In its brief, however, Donaldson contends that there is not a cause of action for a heterosexual male plaintiff who claims to be a victim of gender discrimination by heterosexual co-employees of the same gender where plaintiff did not show an anti-male work environment. Thus, I consider the issue of whether a cause of action lies for such harassment to have been sufficiently raised on appeal.

. Like the McWilliams court, I do not address the viability of heterosexual-on-heterosexual claims involving discrimination through adverse employment decisions nor do I address the viability of any same-sex discrimination claim where victim, oppressor, or both, are homosexual or bisexual. McWilliams, 72 F.3d at 1195 n. 4.

. There is not much legislative history to aid statutory interpretation in this instance. Representative Howard Smith, a foe of civil rights legislation, added “sex” as a prohibited basis of discrimination to Title VII at the last minute in an apparent attempt to defeat the bill. Obviously, the effort failed and there is little legislative history to guide the courts in interpreting discrimination based on sex. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-64, 106 S.Ct. 2399, 2403-04 , 91 L.Ed.2d 49 (1986) (citing 110 Cong. Rec. 2577-84 (1964)); Ulane v. Eastern Airlines, 742 F.2d 1081, 1085 (7th Cir.1984); Charles R. Calleros, The Meaning of “Sex": Homosexual and Bisexual Harassment under Title VII, 20 Vermont L.Rev. 55 (1995). But cf. Sommers v. Budget Marketing, 667 F.2d 748, 750 (8th Cir.1982) (it is "generally recognized that the major thrust of the 'sex' amendment was towards providing equal opportunities for women”).