Amicus Curiae Brief — Webber v. Kansas

No. 96-568 TIT ED

AUS 11 1997

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1997

>

JOSEPH ONCALE,

Petitioner,

—

SUNDOWNER OFFSHORE SERVICES, INCORPORATED;

JOHN LYONS; DANNY PIPPEN; and BRANDON JOHNSON,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF LAMBDA LEGAL DEFENSE AND EDUCATION

FUND; AMERICAN CIVIL LIBERTIES UNION; PEOPLE FOR

THE AMERICAN WAY; NOW LEGAL DEFENSE AND

EDUCATION FUND; WOMEN’S LEGAL DEFENSE FUND;

GAY & LESBIAN ADVOCATES & DEFENDERS; NATIONAL

CENTER FOR LESBIAN RIGHTS; NATIONAL WOMEN’S LAW

CENTER; CONNECTICUT WOMEN’S EDUCATION AND

LEGAL FUND, INC.; NORTHWEST WOMEN’S LAW CENTER;

AND BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Beatrice Dohrn* Steven R. Shapiro

Jon Davidson Jennifer Middleton

Ruth Harlow Sara L. Mandelbaum

David Buckel American Civil Liberties Union

Lambda Legal Defense Foundation

and Education Fund 125 Broad Street

120 Wall Street, Suite 1500 New York, New York 10004

New York, New York 10005-3904 (212) 549-2500

(212) 809-8585 Of Counsel:

* Counsel of Record Minna J. Kotkin

Brooklyn Law School

| Boerum Place

Brooklyn, New York 11201

Attorneys for Amici Curiae

A PLAINTIFF ESTABLISHES THE ELEMENTS

OF HOSTILE ENVIRONMENT SEXUAL

HARASSMENT BY PROVING THAT HE

OR SHE WAS SUBJECTED TO UNWELCOME

VERBAL OR PHYSICAL CONDUCT OF A

SEXUAL NATURE THAT WAS SUFFICIENTLY

SEVERE OR PERVASIVE TO ALTER

NEGATIVELY THE CONDITIONS OF HIS OR

ALL OF THE LIMITATIONS ON TITLE VII’S

COVERAGE THAT SUNDOWNER SEEKS TO

IMPOSE ARE PRECLUDED BY THE

LANGUAGE AND LOGIC OF THE

EEN A Gea Nec Se based esas coberecesces 1]

The Statute Applies Regardless Of The Ill. | EXEMPTING SAME-SEX SEXUAL

Respective Sexes Of The Harasser And | HARASSMENT FROM TITLE VII’S

The Harassed Employee. .............. 11 | COVERAGE WOULD BE INCONSIS

WITH THIS CO .

The Statute Applies Regardless Of The | “a. EQUAL PROTECTION

Sexual Orientation Of The Harasser. ..... 13 8 oc ni ealtiitna dita eet aatatiata at dialled eee

Ea

l. Datentiel ies ee ee ee eevee

Not Required To Connect Sexual ES a

Behavior And Gender. .......... GR 5 SSS TEI eee ee

2. The Harasser’s Reason For

Engaging In Sexual Conduct Is

GRMN: 5 écicin bn cd adamebeasas 15

3. A Sexual Orientation-Based Test

For Liability Is Not Only Completely

Without Foundation In The Statute,

It Would Wreak Havoc As An

Evidentiary Matter. ............ 17

Employers In Single-Sex Environments

Are Not Immunized From Liability. ..... 19

The “Equal Opportunity Harasser” Is A

Red Herring, And The “Problem” It

Presents Is Not Particular To Same-Sex

CaseB. ..cvccceccsetuseoareeeeee 21

The Employer Is Not Immunized From

Liability For Sexual Harassment If The

Harassed Employee Is, Or Is Perceived

To Be, Gay Or Lesbian. ............6.. 24

il ili

TABLE OF AUTHORITIES

CASES

Andrews v. City of Philadelphia,

895 F.2d 1469 (3rd Cir. 1990) ............ 4,7, 25

Blalock v. Metals Trades, Inc.,

775 F.2d 703 (6th Cir. 1985) .... 2... --- eee ees 12

Boutros v. Canton Regional Transit Authority,

997 F.2d 198 (6th Cir. 1993) ... 2... 6c ee ee eee 20

Burns v. McGregor Electronic Industries,

955 F.2d 559 (11th Cir. 1992) ...... 6.666000 e 13

Castaneda v. Partida, 430 U.S. 482 (1977) ..........+.. 12

Chiapuzio v. BLT Operating Corp.,

826 F. Supp. 1334 (D.Wy. 1993) ........... 22, 23

City of Los Angeles Dep't. of Water and Power

v. Manhart 435 U.S. 702 (1978) .......-..-55: 21

Cline v. General Electric Credit Auto Lease,

748 F. Supp. 650 (N.D. Ill. 1990) .........---. 20

Craig v. Boren, 429 U.S. 190 (1976) .. «6. eee eee 27

Davis v. Chevron U.S.A., Inc.,

14 F.3d 1082 (Sth Cir. 1994) ........-- 6-0 eees 20

DeSantis v. Pacific Tel. & Tel. Co.,

608 F.2d 327 (9th Cir. 1979) ................. 25

Doe v. City of Belleville,

No. 94-3699, 1997 U.S. App. LEXIS

17940 (7th Cir. July 17, 1997) ............. passim

EEOC v. Farmer Bros. Co.,

a aE, HED occ ovccccscccosers 16

EEOC v. Hacienda Hotel,

881 F.2d 1504 (9th Cir. 1989) ................. 4

Erebia v. Chrysler Piastic Products Corp.,

772 F.2d 1250 (6th Cir. 1985),

cert. denied, 475 U.S. 1015 (1986) ......... 20, 21

Firefighters Institute for Racial Equality v.

City of St. Louis, $49 F.2d 506 (8th Cir.),

cert. denied, 434 U.S.819 (1977) .............. 10

Fredette v. BVP Management Associates,

112 F.3d 1503 (11th Cir. 1997) ................ 5

Fuller v. City of Oakland,

GF Foe Ceee Gee. BODE) 5 oc cc ccccvcccccces 4

Grant v. Hazelett Strip-Casting Corp.,

880 F.2d 1564 (2d Cir. 1989)................. 20

Gresham v. Waffle House, Inc.,

586 F. Supp. 1442 (N.D. Ga. 1984) ............ 10

Hansborough v. City of Elkhart Parks and Recreation

Dep't, 802 F. Supp. 199 (N.D. Ind. 1992) ....... 12

Vv

Harris v. Forklift Systems, Inc.,

SIGUS. 17 (IGBTS) 6 once cc cdecscccscccses 13,17

Harris v. International Paper Co.,

765 F. Supp. 1509 (D. Me. 1991) ..........--. 16

Henson v. City of Dundee,

682 F.2d 897 (11th Cir. 1982) ............-4-: 14

Hutchison v. Amateur Electronic Supply, Inc.,

42 F.3d 1037 (7th Cir. 1994) .......-..--0006- 22

International Union, UAW v. Johnson Controls,

499 US. 187 (1991) . on cece cccccccccccccces 15

JE.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ..... 27

Johnson v. Transportation Agency, Santa Clara County,

480 U.S. 616 (1987) . 0. ence eee e cee eeeees 12

King v. Hillen, 21 F.3d 1572 (Fed. Cir. 1994) .......--. 25

Kopp v. Samaritan Health Systems, Inc.,

13 F.3d 264 (8th Cir. 1993) ..... 2... eee eee eee 25

Loving v. Virginia, 388 U.S. 1 (1967) .....-- +--+ 005> 27

Macauley v. Massachusetts Comm'n Against

Discrimination, 397 N.E.2d 670 (Mass. 1979) ... 25

McDonald v. Santa Fe Trail Transp. Co..,

427 US. 273 CUDPO).. oo ccc ccsccccccccccscee: 11

McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) .... 23

McWilliams v. Fairfax County Board of Supervisors,

72 F.3d 1191 (4th Cir) cert denied,

SER EE Sc Saka ciduuesbiiodic. 5,24

Meritor Savings Bank, FSB v. Vinson,

og | EER, Ce a 4,8, 13,17

Mississippi University for Women v. Hogan,

Ne se os ows 27

Newport News Shipbuilding & Dry Dock Co.

v. EE.O.C., 462 U.S. 669 (1983)... 20.00.00 0.. 11

Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994) ......... 4,7

Parr v. Woodmen of the Word Life Insurance,

791 F.2d 888 (11th Cir. 1986) ................ 10

Pease v. Alford Photo Industries,

667 F. Supp. 1188 (W.D. Tenn. 1987).......... 16

Perry v. Kunz, 878 F.2d 1056 (8th Cir. 1989) .......... 20 -

Price Waterhouse v. Hopkins,

| ee passim

Quick v. Donaldson Co.,

90 F.3d 1372 (8th Cir. 1996) ............... 5, 24

Reiter v. Central Consol. Sch. Dist.,

618 F. Supp. 1458 (D. Colo. 1985) ............ 10

Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971),

cert. denied, 406 U.S. 957 (1972) ............. 10

vii

Ruhe v. Philadelphia Enquirer,

14 Fair Empl. Prac. Cas.

(BNA) 1304 (D.C. Pa. 1975) .. 2.2... cece eee 10

Smith v. Liberty Mut. Ins. Co.,

569 F.2d 325 (Sth Cir. 1978) ..........-0005- e

Snell v. Suffolk County, 78? ¥.2d 1094 (2d Cir. 1986) ... 20

Steiner v. Showboat Operating Company,

25 F.3d 1459 (9th Cir. 1994),

cert. denied, 513 U.S. 1082 (1995) ............ 23

U.S. v. Virginia, 116 S.Ct. 2264 (1996) .... 0... 6. ee ees 26

Veatch v. Northwestern Memorial Hospital,

730 F. Supp. 809 (N.D. Ill. 1990) ..........4.. 12

Watson v. Nationwide Insurance Co.,

823 F.2d 360 (9th Cir. 1987) ..........-02 0 ee 10

Ways v. City of Lincoln, 871 F.2d 750 (8th Cir. 1989) ... 20

Weinberger v. Weisenfeld, 420 U.S. 636 (1975) ......-. 27

Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991) ........ 12

Woods v. Graphic Communications,

925 F.2d 1195 (9th Cir. 1991) .........-.5055- 22

Wrightson v. Pizza Hut, 99 F.3d 138 (4th Cir. 1996) ..... 5

Wyerick v. Bayou Steel Corp.,

887 F.2d 1271 (Sth Cir. 1989) ...........5055. 22

Vill

STATUTES AND REGULATIONS

a 6

OT EC eras 8,9, 21

OTHER AUTHORITIES

Alan P. Bell & Martin S. Weinberg, Homosexualities:

A Study of Diversity Among Men & Women

EE ee Le se 13

John P. DeCecco, Definition and Meaning of Sexual

Orientation, in Philosophy and Homosexuality

(Noretta Koretge, ed. 1985) .................. 18

Developments inthe Law - Sexual Orientation

and the Law, 102 Harv. L. Rev. 1508,

ee 13

Gregory M. Herek, Myths about Sexual Orientation:

A Lawyer's Guide to Social Science Research,

1 Law & Sexuality 133 (1991)................ 18

Kenneth L. Karst, Myths of Identity: Individual

and Group Portraits of Race and Sexual

Orientation 43 U.C.L.A. L. Rev. 263 (1995)... .. 18

Edward O. Laumann, et al., Homosexuality in The Societal

Organization of Sexuality 283 (1994) ....... 13, 18

ix

Samuel A. Marcosson, Harassment on the Basis of INTEREST OF AMICI CURIAE'

Sexual Orientation: A Claim of Sex

Discrimination Under Title VII, Amici include national and regional organizations

ot Saat Serer ree 26 dedicated to achieving equality under the law for lesbians and

gay men: Lambda Legal Defense and Education Fund, The

Note, Sexual Harassment Claims of Abusive National Center for Lesbian Rights, Gay & Lesbian

Work Environment Under Title VII, Advocates & Defenders, and Bay Area Lawyers for Individual

97 Harv. L. Rev. 1449 (1984) ......-. 6.000 ee 7 Freedom.

Stephanie Riger, Gender Dilemmas in Sexual Amici include organizations dedicated to supporting

Harassment Policies and Procedures, women’s efforts to eliminate sex discrimination: NOW Legal

46 Am. Psychol. 497 (1991) .......--5000555 16 Defense and Education Fund, The National Women’s Law

Center, The Women’s Legal Defense Fund, Northwest

Gary N. Powell, Effects of Sex Role Identity Women’s Law Center and Connecticut Women’s Education

and Sex on Definitions of Sexual Harassment, and Legal Fund.

14 Sex Roles 9 (1986) ........--- ee eee e eens 16

Amici include nonpartisan organizations dedicated to

the protection of civil and constitutional rights: The

American Civil Liberties Union and People for the American

Way.

Amici have the consent of the parties to file this brief.

Letters of consent have been filed separately in this Court. A

complete list of amici and their statements of interest are set

forth in Appendix A.

‘Counsel for the parties authored no part of this brief, and the

expenses of its preparation and submission have been borne exclusively

by Lambda Legal Defense and Education Fund.

x l

SUMMARY OF ARGUMENT

The Fifth Circuit Court of Appeals affirmed summary

judgment for Sundowner in this case, holding that there can

never be a cause of action under Title VII for sexual

harassment where the harasser and the harassed employee are

of the same sex. This interpretation would have Title VII

apply differently to exactly the same facts, conditioning

liability on the sex of the harassed employee. Amici urge that

this is a remarkable reading of a statute intended to stop

practices that take sex into account, a reading that should be

rejected here.

The statute’s language and purpose would similarly be

disserved by holding sexually harassing behavior actionable if

consistent with a harasser’s sexual orientation, yet finding

exactly the same conduct exempt from coverage if the

harasser’s sexual orientation were different. Given that such a

requirement has never been articulated in different-sex cases,

this Court should reject Sundowner’s argument.

Two concepts already embodied in the Court’s prior

rulings help alleviate the confusion that has surfaced in this

case and others, over Title VII's application to same-sex

sexual harassment. The first is that unwelcome sexual

conduct imposed on employees is, per se, because of sex. No

separate showing is required to establish that sexual

harassment occurred because of sex; sexual harassment, by its

very nature, takes sex into account and disadvantages its

victims on that basis. The second critical concept is that the

statute covers all adverse employment actions, in this case a

hostile environment, that take gender into account (and that

meet the other applicable requirements, such as severity or

pervasiveness and employer liability). Such actions based on

sex “discriminate” within the meaning of the statute, without

the need for any further group-based or comparative showing,

2

because they rely on a factor that Title VII aims to banish

from the workplace.

‘Sexual harassment jurisprudence rests on the

recognition that a gender-based condition of employment is

created when physical or verbal conduct of a sexual nature is

So severe or pervasive as to create a hostile or offensive work

environment, or as to interfere with an individual’s

performance. Sexual harassment can spring from myriad

sources within the harasser-- some ascertainable and some

not. In different-sex cases, the courts have correctly deemed

irrelevant the complex personal well-spring for a particular

harasser’s behavior. Same-sex sexual harassment does not

require the courts to delve into those factors any more than

different-sex cases did. It is the inherently gender-based

nature of sexual harassment that brings the conduct under the

purview of Title VII, no matter the respective sexes or sexual

orientations of the harasser or the harassed employee, and no

matter whether the harasser’s intentions are amorous or

hostile. The language and the spirit of Title VII would be

contravened by holding otherwise.

ARGUMENT

I. A PLAINTIFF ESTABLISHES THE ELEMENTS

OF HOSTILE ENVIRONMENT SEXUAL

HARASSMENT BY PROVING THAT HE OR

SHE WAS SUBJECTED TO UNWELCOME

VERBAL OR PHYSICAL CONDUCT OF A

SEXUAL NATURE THAT WAS SUFFICIENTLY

SEVERE OR PERVASIVE TO ALTER

NEGATIVELY THE CONDITIONS OF HIS OR

HER EMPLOYMENT.

This Court recognized a decade ago that the injection

of unwelcome sexual conduct into the workplace -- whether

3

demanding a quid pro uo or by creating a hostile

adr -- is srohibited by Title VII in that it creates an

adverse condition of employment because of sex. Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986).

Whatever the sex of the harasser and the harassed employee,

the principle that sexual conduct is per se related to the sex of

the person or persons subjected to it is the gravamen of the

sex discrimination inherent in sexual harassment.

To prove a hostile mest — oe ohgie

im, a plaintiff must show that in the context of

oe he or she suffered (1) verbal or physical conduct

of a sexual nature” (2) that was unwelcome and (3) that was

sufficiently severe or pervasive to affect the conditions of we

or her employment negatively’ Fuller v. City of Oakland, 4

F.3d 1522 (9th Cir. 1995); EEOC v. Hacienda Hotel, 881

F.2d 1504 (9th Cir. 1989); see also Andrews v. City of

Philadelphia, 895 F.2d 1469 (3rd Cir. 1990). By proving

those three elements, a plaintiff necessarily shows that an

impermissible factor -- sex -- has been used to impose —

disadvantageous terms of employment, thereby subjecting

that individual to unlawful discrimination prohibited by Title

VIL.

*Obvi not be shown where it is

Obviously, sexual conduct need

alleged that gender-based harassment, which need not be sexual to be

actionable, violated Title VII.

> Of course, in all Title VII cases, some basis for employer

liability, such as respondeat superior must also exist. Because that is an

element common to all Title VII actions, it requires no separate ae

consideration in this brief, nor need it be included in any test particu

sexual harassment claims. In addition, some courts impose a completely

illusory requirement that the plaintiff show membership in a aga

class, an element rendered meaningless by the fact that both men Sat,

women are protected by the statute. Nichols v. Frank, 42 F.3d 503 (

Cir. 1994) (criticizing the typical five-part test).

4

The determination that the discrimination occurs

“because of sex” in sexual-harassment cases is based on the

nature of the sexua! conduct itself. Where sexual references

or behavior are the basis of a harassment claim, no further

evidence should be required to establish the link between the

harasser’s use of sex to create an abusive work environment

and the harassed employee’s gender. Some courts have

purported to require a separate duplicative showing that the

sexual harassment is imposed based on sex, but they err by

doing so. Even these courts, however, correctly have readily

found this separate because-of-sex “element” to be

established (although usually without discussion) where men

harass women sexually (or vice versa); it is only in cases

involving harassers and harassed employees of the same sex

that they erroneously have required additional proof. Fredette

v. BVP Management Associates, 112 F.3d 1503 (11th Cir.

1997); Hopkins v. Baltimore Gas and Electric Co., 77 F.3d

745, 752 (4th Cir.), cert. denied, 117 S.Ct. 70 (1996);

McWilliams v. Fairfax County Board of Supervisors, 72 F.3d

1191 (4th Cir.) cert. denied, 117 S. Ct. 72 (1996); Wrightson

v. Pizza Hut, 99 F.3d 138 (4th Cir. 1996); Quick v. Donaldson

Co., 90 F.3d 1372 (8th Cir. 1996).

An understanding of how a plaintiff shows

“discrimination” and “because of sex” in a sexual-harassment

case is Critical to the issues that have confused the circuit

courts in same-sex sexual harassment cases. Amici therefore

first address the meaning of the concepts “because of sex”

and “to discriminate” in Title VII.

A. Conduct Of A Sexual Nature Is Inherently

“Because Of Sex.”

Gender is powerfully rooted in all sexual behavior, in

the workplace as elsewhere. To the recipient, unwelcome

sexual overtures or sexual abuse can never be divorced from

5

gender. “In each case, the victim’s gender not only supplies

the lexicon of the harassment, it affects how he or she will

experience that harassment...” Doe v. City of Belleville, No.

94-3699, 1997 U.S. App. LEXIS 17940, at *45 (7th Cir. July

17, 1997).

Environmental sexual harassment makes a condition

of employment the endurance of severe or pervasive gender-

based intimidation and humiliation.’ By barraging an

employee with “unwelcome sexual advances, requests for

sexual favors, or other verbal or physical conduct of a sexual

nature,” 29 C.F.R. § 1064.11(a), a harasser exposes the

victim’s gender in sharp relief, degrading the employee based

on his or her particular gender. Overtly sexual conduct

inevitably plays off of the victim’s sex and thus establishes

sex as a substantial factor in the creation of such adverse

working conditions.’

‘The Equal Employment Opportunity Commission (EEOC)

guidelines on sexual harassment, 29 C.F.R. § 1604.11 (1997), describe

the range of behavior addressed by the statute as follows: “unwelcome

sexual advances, requests for sexual favors, and other verbal or physical

conduct of a sexual nature.” The guidelines go on to explain that such

conduct will rise to the level of actionable sexual harassment if

submission to it is a condition of employment, if submission to or

rejection of such conduct is the basis for employment decisions, or if

“such conduct has the purpose or effect of unreasonably interfering with

an individual’s work performance or creating an intimidating, hostile, or

offensive working environment.” /d.

‘This stands in marked contrast to instances of “bad behavior”

that do not directly invoke the invidious bases enumerated in Title VII

(such as when an employer, with no reference or allusion to an

employee’s race, religion, sex, or national origin, is gruff, unpleasant,

harsh, quick tempered, a strict disciplinarian, or the like). In such a case,

if a plaintiff alleges that the employer has created an environment

violative of Title VII by that behavior, other evidence proving a

connection to at least one prohibited basis will be required.

6

When sexual propositions, innuendo, or derogatory

Sexual language is used, the intent to discriminate is implicit.

é ndrews v. City of Philadelphia, 895 F.2d at 1482 n.3. The

interchangeable uses of the term “sex” to refer to the panoply

of intimate acts and to refer to a person’s gender is not

coincidental in the sexual-harassment context, nor is it beside

the point. It is indicative of the deep connection between the

two. Sexual words or conduct can be conveyed, as well as

received, only in the context of a person’s particular sex

(gender). Thus, sexual conduct has its meaning and effect

because of sex.” ° Nichols v. Frank, 42 F.3d 503, 511 (9th

Cir. 1994) (“[S]exual harassment is ordinarily based on sex.

What else could it be based on?”) (emphasis in original).

In its first direct ruling on same-sex sexual

harassment, the Seventh Circuit recently adopted this very

principle in a comprehensive and thoughtful opinion. Doe v

City of Belleville, No. 94-3699, 1997 U.S. App. LEXIS.

17940, at *45 (7th Cir. July 17, 1997). The court reasoned:

[W]e have difficulty imagining when harassment of

this kind would not be, in some measure, ‘because

of the harassee’s sex -- when one’s genitals are

grabbed, when one is denigrated in gender-specific

language, and when one is threatened with sexual

assault, it would seem impossible to de-link the

harassment from the gender of the individual

harassed. ’

Id. at *51. The court found that the sexual nature of the

.

harassment imposed by men on two teenage boys constituted

sexual harassment occurs because of the harassed employee's sex...” )

*Note, Sexual Harassment Claims

. of Abusive Work Environment

Under Title V1, 97 Harv. L. Rev. 1449, 1456 (1984) (“[B}y iii

7

sex discrimination, and commented at length on the gendez

basis inherent in any harassing sexual acts. /d.

Whether unwelcome physical or verbal conduct of a

sexual nature is imposed upon an employee to exact a quid

pro quo, or to create a hostile work environment, it imposes a

gender-based employment condition. In each instance, the

sexual conduct itself establishes the connection to gender.

B. “Discriminate,” In Title VII, Means To Use

Any Of The Enumerated Characteristics As

A Factor In Making Employment Decisions

Or Establishing The Conditions Of

Employment.

A finding of discrimination under Title VII requires

nothing more than the use of an impermissible factor in an

employment action. “Congress’ intent” in enacting Title VII

was “to forbid employers to take gender into account in

making employment decisions[.]” Price Waterhouse v.

Hopkins, 490 U.S. 228, 239 (1989). Sections 2000e-2(a)(1)

and (2) “mean that gender must be irrelevant to employment

decisions.” Price Waterhouse at 240. Thus, a

has ven that an employer acted “because o

individual's .. . sex,” 42 U.S.C. § 2000e-2(a)(1), that plaintiff

also has established discrimination with respect to Title VII's

use of the term “to . . . discriminate.” The notion of

discrimination in this statute does not introduce some

additional element above and beyond proof that gender was

impermissibly taken into account in refusing to hire, in firing,

or in creating hostile working conditions (as in the present

case). As the Court emphasized in Meritor, “Without .

question, when a supervisor sexually harasses a subordinate

because of the subordinate’s sex, that supervisor

‘discriminate[s]’ on the basis of sex.” Meritor, 477 U.S. at

64.’

Sundowner mistakenly assumes that Title VII's

reference to discrimination, in defining unlawful employment

practices, requires that an individual being sexually harassed

show that he or she is being subjected to unwanted sexual

conduct that inherently uses his or her gender as a factor to set

up hostile work conditions and additionally show that those

of a different sex are not also being subjected to parallel

conduct. However, the concept of “discrimination” embodied

in Title VII does not require the second, additional showing.

Title VII's prohibition of certain employment

practices clearly includes a number of situations that are not

dependent upon a showing that one group was disadvantaged

and others not. The use of gender stereotypes is a violation of

Title VII (Price Waterhouse, supra), for example, and this

"That comparative evidence is not a necessary element of all

Title VII claims is shown by the very structure of § 2000e-2(a)(1):

It shall be an unlawful employment practice for an employer --

(1) to fail or refuse to hire, or to discharge, or otherwise 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 supplied). If there were some

separate proof requirement invested in the word “discriminate,” surely

Congress would have drafted the provision so that this word was directly

tied to claims arising out of hiring and firing decisions as well. The

statute unambiguously states that a decision to fire or not to hire an

individual because of any one of the impermissible factors establishes an

unlawful employment practice; the word “discriminate” and phrase

“otherwise to discriminate” are only included as a catch-all phrase for

ee anne . compensation,

terms, conditions, or privileges of employment.”

9

would be true even if both men and women were subjected to

stereotypes about their sex. Having sex-segregated want ads

likewise constitutes sex discrimination even though both men

jobs. Ruhe v. Philadelphia Enquirer, 14 Fair Empl. Prac.

Cas. (BNA) 1304, 1305 (D.C. Pa. 1975). Taking an adverse

job action against an employee because of the employee's

association with someone of a different race similarly violates

Title VII, even if the employer penalizes both white and non-

white employees who are in interracial relationships. See

Watson v. Nationwide Insurance Co., 823 F.2d 360, 361-2

(9th Cir. 1987); Parr v. Woodmen of the Word Life Ins., 791

F.2d 888, 892 (11th Cir. 1986); Reiter v. Central Consol. Sch.

Dist., 618 F. Supp. 1458, 1460 (D. Colo. 1985); Gresham v.

Waffle House, Inc., 586 F. Supp. 1442, 1445 (N.D. Ga. 1984).

Workplace segregation may present the starkest example of

prohibited “discrimination” that occurs (see Firefighters

Institute for Racial Equality v. City of St. Louis, 549 F.2d 506,

514 (8th Cir.), cert. denied, 434 U.S. 819 (1977), Rogers v.

EEOC, 454 F.2d 234, 238-39 (Sth Cir. 1971), cert. denied,

406 U.S. 957 (1972)), even though a// employees are

subjected to the segregation.

In the same way, an employer who repeatedly fondles

a female employee’s breasts and often grabs a male

employee’s testicles, or a supervisor who rapes or exacts a

sexual guid pro quo both from a male employee and a female

employee, has sexually harassed and thereby engaged in

discrimination based on sex as to two employees, not none.

Even the very same conduct, such as rape, uses and plays on

an employee’s male or female sex differently, and relies upon

each specific victim’s gender to demean and disadvantage

him or her, individually, in the workplace. See also infra,

section II(D).

10

Il. ALL OF THE LIMITATIONS ON TITLE VII’S

COVERAGE THAT SUNDOWNER SEEKS TO

IMPOSE ARE PRECLUDED BY THE

LANGUAGE AND LOGIC OF THE STATUTE.

A. The Statute Applies Regardless Of The

Respective Sexes Of The Harasser And The

Harassed Employee.

Title VII protects male as well as female employees,

Newport News Shipbuilding & Dry Dock Co. v. EEOC., 462

U.S. 669, 681-82 (1983), and it does so without regard to the

race, color, religion, sex, or national origin of the person who

takes the adverse action against the employee. Belleville,

1997 U.S. App. LEXIS 17940 at *26. It is not surprising that

the statute does not distinguish among employees’ claims

based on their sex, or other characteristics, given that the

statute reflects “the simple but momentous announcement that

sex, race, religion, and national origin are not relevant to the

selection, evaluation, or compensation of employees.” Price

Waterhouse v. Hopkins, 490 U.S. at 237 (1989).

Throughout the history of Title VII, this Court has

applied the plain meaning of the statute to countenance no

distinctions in the application of its standards based on race,

sex, religion or national origin. See, e.g, McDonald v. Santa

Fe Trail Transp. Co., 427 U.S. 273, 280 (1976) (“Title VII

prohibits racial discrimination against the white petitioners in

this case upon the same standards as would be applicable as

were they Negroes. . . .”).

This remains true in the many instances in which

employers of one race, religion, sex or national origin are

charged with discriminating in violation of Title VII against

another of the same race, religion, sex, or national origin. See

11

Johnson v. Transportation Agency, Santa Clara County, 480

U.S. 616, 624-26 (1987) (in sex-discrimination case brought

by male plaintiff attacking decision to promote female

applicant instead of him, this Court attached no significance

to the fact that the promotion decision was made by another

male); Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991)

(considering male plaintiffs’ sex discrimination claims

without objection that relevant employment decisions were

made by other men); Veatch v. Northwestern Memorial

Hospital, 730 F. Supp. 809 (N.D. Ill. 1990) (assertion that

plaintiff has no claim of sex discrimination because the firing

decision was made by another woman reflects a

misunderstanding of the laws against discrimination and the

evils they were enacted to combat); Blalock v. Metals Trades,

Inc., 775 F.2d 703, 708 (6th Cir. 1985) (Christian allowed to

sue Christian employer for religious discrimination),

Hansborough v. City of Elkhart Parks and Recreation Dep t

802 F. Supp. 199, 201, 206 (N.D. Ind. 1992) (“intraracial

discrimination,” such as “discrimination by a black individual

against another black individual because of the fact that he is

a black person,” is actionable under Title VII). Given the

unfortunate fact that human beings may discriminate against

their own kind, Castaneda v. Partida, 430 U.S. 482 (1977),

the goal of eliminating consideration of the impermissible

factors from the workplace would be subverted, and the

statute’s own terms contradicted, if the viability of a claim

turned upon the sex (i.e., gender) of the parties.

12

B. The Statute Applies Regardless Of The

Sexual Orientation Of The Harasser.

1. Potential Sexual Attraction Is Not

Required To Connect Sexual

Behavior And Gender.

Like the overwhelming number of lower courts that

have considered different-sex sexual harassment cases, this

Court has seen no need for evidence that the harassers whose

conduct resulted in lawsuits acted consistent with their sexual

orientation as a necessary precursor to Title VII liability.

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66

(1986); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

Nor have different-sex sexual harassment cases involved any

showing that the men who harassed actually considered

themselves to be heterosexual. Clearly, the language of Title

VII, as correctly applied in the different-sex scenarios, does

not hinge liability on proven sexual attraction or on the

perpetrator having a particular sexual orientation, and no such

limitations should be applied here.* Burns v. McGregor

* Moreover, even if sexual harassment did require libidinous

intent, some men who consider themselves gay nonetheless are sexually

attracted to some women and may act upon that attraction, without this

changing their self-definition. See Alan P. Bell & Martin S. Weinberg,

Homosexualities: A Study of Diversity Among Men & Women 54-55

(1978) (reporting study results showing that almost two-thirds of men

who considered themselves gay had engaged in heterosexual coitus at

least once in their lives and that 14 to 22 percent of self-defined gay men

had engaged in heterosexual coitus in the year prior to interview).

Likewise, “[m]any people who have had same-sex sexual

experiences do not label themselves gay or lesbian...” Developments in

the Law - Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, n. |

(1989); Edward O. Laumann, et al., Homosexuality in The Societal

Organization of Sexuality 283, 287-301 (1994) (reporting survey findings

of “sizable groups who do not consider themselves to be either

13

Electronic Industries, 955 F.2d 559 (11th Cir. 1992); Henson

v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

Sundowner’s reliance on Oncale’s purported failure to

rebut Lyons’, Pippin’s and Johnson’s heterosexuality, Opp'n

Cert. at P.15, demonstrates how a focus on sexual orientation

undermines the statute’s aim of ending employment practices

that are, in whole or in part, based on the employee's sex.

Requiring sexual harassment to be consistent with the

harasser’s sexual orientation would shift the focus of the

inquiry from the one mandated by Title VII, namely the

harasser’s use of the sex of the employee, to the sexual .

desires and identity of the harasser, a factor irrelevant to its

mandate. “4

Indeed, Sundowner’s discussion of heterosexuality

and its supposed function as a defense illustrates that

explicitly sexual words or behavior cannot be divorced from

gender. In relying on the harassers’ sense of themselves as

heterosexual men to assert that their behavior was not sexual

harassment, Sundowner places critical reliance on Oncale 's

gender. Confusing sexual desire with “because of Sex,” it

argues that the harassers’ grossly sexual behavior, like ;

exposing themselves and putting their penises on Oncale’s

body, would be sexual harassment only if they were gay :

because, Sundowner assumes, in that case the men’s behavior

would have been undertaken to gratify sexual desire. Opp’n

Cert. at P.10. Thus, Sundowner claims that the harassers

heterosexuality -- and Oncale 's status as a man -- means that

homosexual or bisexual but [who] have had adult homosexual

experiences or express some degree of [same sex] desire”).

14

the behavior was not “because of sex.”® Sundowner’s

argument concedes that sexual behavior is so inextricably

related to gender that the two cannot be divorced, for

Sundowner’s own gloss on the harassers’ behavior -- that it is

not covered by Title VII because as heterosexual men their

conduct must not have been motivated by desire -- turns on

Oncale’s sex.

2. The Harasser’s Reason For

Engaging In Sexual Conduct Is

Irrelevant.

This Court has not inquired into harassers’ or

harassees’ sexual orientations, or the thoughts or feelings that

a harasser might have had in using sexual conduct. This lack

of inquiry establishes the irrelevance under Title VII of the

personal psychosocial make-up of individua!s who sexually

harass. A person who, for whatever complex internal reason,

decides to interfere with an employee’s performance, or

creates a hostile environment by imposing unwelcome sexual

conduct is a person who has taken action and disadvantaged

another because of sex. Belleville, 1997 U.S. App. LEXIS

17940.

A harasser’s personal impetus for his conduct is

totally irrelevant to liability for sexual harassment. See

International Union, UAW v. Johnson Controls, 499 U.S.

* Of course, neither the harassers’ marital status, nor their

asserted heterosexuality alters the highly sexual nature of conduct like

Lyons’ placing his penis on Oncale’s neck and arm, or the men forcing a

bar of soap into his buttocks, or anus, while threatening that they were

preparing to rape him. Nor does any of the men’s status change that they

each engaged in sexual conduct with and in the company of men, at the

expense of Oncale’s employment.

15

187, 200 (1991) (“The beneficence of an employer's purpose

does not undermine the conclusion that an explicit gender-

licv is sex discrimination . . .”); Harris v.

prsiicomd Paper Co., 765 F. Supp. 1509, 1515 (D. Me.

1991) (“laws prohibiting racial and sexual harassment are

wholly uninterested in the perpetrator’s intent. Victims need

establish neither the fault or the discriminatory intent of their

employers and co-workers to succeed under Title VII....”).

Sexually harassing conduct equally violates the statute

if the harasser acts out of disgust and animus just as if he acts

out of misplaced desire." Individuals who engage in sexual

harassment may have different purposes; one may wish to

“gratify his sexual desires” while another may seek “to :

subordinate women, to remind them of their lower status in

the workplace, and to demean them.” EEOC v. Farmer Bros.

Co., 31 F.3d 891, 897-98 (9th Cir. 1994). “Men sexually

harass women in the workplace for reasons other than sexual

desire; but that does not detract either from the sexual content

of the harassment or from the i SE

denigrating impact sexual harassment has upon the women

who experience it.” Belleville, 1997 U.S. App. LEXIS 17940

at *86.

This Court’s two sexual harassment cases illustrate the

- Indeed, many male harassers of women no doubt believe their

sexual attentions to be complimentary and would claim to hold their

victims in high esteem. Pease v. Alford Photo Indus., 667 F.Supp. 1188,

1190 (W.D. Tenn. 1987) (finding liability for harassment where the

perpetrator thought his acts were merely “the friendly acts of an

employer”); Stephanie Riger, Gender Dilemmas in Sexual Harassment

Policies and Procedures, 46 Am. Psychol. 497, 499 (1991) (noting that

conduct that women generally perceive as sexual harassment will not

necessarily be perceived as such by men, who may consider it ordinary

social interaction); Gary N. Powell, Effects of Sex Role Identity and Sex

on Definitions of Sexual Harassment, 14 Sex Roles 9 (1986).

16

point. In Meritor, which involved ongoing sexual selations

between the parties, the harasser might have said he was

motivated by admiration or desire, while in Harris, which

involved derogatory sexual comments, the harasser claimed

only to be joking. Yet no relevance was attached to these

varying personal interests, because the conduct of the

harassers demonstrated the only fact necessary: it was based

on the sex of its victims.

3. A Sexual Orientation-Based Test For

Liability Is Not Only Completely

Without Foundation In The Statute,

It Would Wreak Havoc As An

Evidentiary Matter.

Amici urge adoption of the analysis set forth above

because it is consistent with the statute, with this Court’s

decisions interpreting Title VII, and with the pertinent

constitutional limitations. Another factor further compels a

finding against hinging liability on the harasser’s sexual

orientation: the horrendous quagmire of evidentiary and

definitional problems that would be raised by a test specific to

the internal sexual and sexual orientation-related perspective

of the harasser.

For example, in the instant case, if Sundowner’s

submission of evidence that Lyons is married to a woman is

relevant to its culpability because it is sought to be offered as

circumstantial evidence that he did not act against Oncale out

of sexual desire, then would evidence that he was sexually

aroused when he assaulted Oncale affect a finding of liability?

Should it? Is a person’s self-definition as to sexual

orientation rebuttable? In different-sex cases, would men or

women accused of harassment be absolved if they (or their

employers) are willing to say they are gay, lesbian or

bisexual? Would same-sex experience need to be

17

substantiated? Would attraction suffice? A sexual

orientation-based test would make relevant the most elusive,

private aspects of alleged harassers’ (and sometimes

harassees’) lives, histories, and thoughts.

As argued above, the assumption that sexual

attraction, or potenti i! sexual attraction, determines whether

the same acts are or are not “because of sex” is a fallacy.

However, a further fallacious assumption follows from

adopting that approach: that only people who call themselves

“gay” or “lesbian” experience attraction to those of the same

sex, and that only those who consider themselves

“heterosexual” experience attraction to those of a different

sex.'' Sexual attraction, and the designation of sexual

' Having courts or juries attempt to make a definitive factual

determination regarding a person's sexual orientation, much less his or

her capacity for sexual attraction in a specific instance, would be a highly

problematic exercise. Sexual orientation is a complex construct,

involving elements of desire, behavior, community and identity. See ;

Edward O. Laumann, et al., “Homosexuality,” in The Social Organization

of Sexuality, 283, 287-301 (1994) (“homosexuality is fundamentally a

multidimensional phenomenon”); Gregory M. Herek, Myths about Sexual

Orientation: A Lawyer's Guide to Social Science Research, | Law &

Sexuality 133, 134-35 (1991) (discussing veo tas 990 a

sexuality that are contained within the rubric of sexual orientation);

P. DeCecco, Definition and Meaning of Sexual Orientation, in Philosophy

and Homosexuality 51, 64 (Noretta Koretge, ed. 1985) (reviewing studies

and concluding that “sexual orientation ... is a tapestry far richer and more

intricate than we have imagined”); see also Kenneth L. Karst, Myths of

Identity: Individual and Group Portraits of Race and Sexual Orientation,

43 U.C.L.A. L. Rev. 263 (1995) (comparing difficulties in oe

regarding a litigant’s and a litigant’s sexual orientation).

Ifa defendants liability hinged on the harasser’s sexual

orientation or on the even more difficult-to-prove presence of sexual

attraction in a given instance, obviously the harasser’s own statements on

those issues could not be seen as definitive proof. This is in marked

contrast to the situation faced by gay or lesbian plaintiffs, or those

perceived to be gay, in cases completely distinct from the one at hand.

18

orientation, are far more complex and variable than allowed

for by such an assumption. Conditioning Title VII liability

on a finding concerning a harasser’s potential for sexual

attraction to a person of a particular gender would legitimize

extraordinarily broad, unsavory inquiries and result in many

employers escaping liability.

c. Employers In Single-Sex Environments Are

Not Immunized From Liability.

Sundowner also advances the implausible suggestion

that because there were no women at Oncale’s job site,

Oncale cannot make out the elements of a sex-discrimination

claim. Opp’n Cert. at 13. This argument rests on the flawed

premise that Oncale needs to show that women were in fact,

or would have been, treated differently by the employer to

prove that he suffered discrimination because of sex. As

explained above at I(B), this reflects a misunderstanding of

the statute’s use of the term “discriminate.”

Comparative evidence is an evidentiary tool that

individual plaintiffs may use in some Title VII cases to show

that the adverse action suffered was because of the

employee’s sex.'? As this Court has indicated, however, it is

There, self-identification or the perception of others is sufficient proof as

to the sexual-orientation component of the case. (More facts would be

necessary, of course, in any such case to prove a plaintiff's claim, but here

a complete defense to liability is contemplated.)

'? The McDonnell-Dougias burden-shifting paradigm, which

frequently leads plaintiffs to employ comparative evidence, was crafted to

permit an inference of an impermissible motive in the very different

situation where there is no direct evidence that the adverse action was

really taken based on race, color, religion, national origin, or sex. Price

Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J.,

concurring) (“[T]}he entire purpose of the McDonnell Douglas prima facie

19

-~

not the only way to do so.’ Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). Racial slurs, for example -- or even

racial symbols, references, cartoons or jokes that allude to

race -- demonstrate by themselves that a hostile environment

occurred “because of race” or national origin.'* Indeed, in

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250,

1258 (6th Cir. 1985), cert. denied, 475 U.S. 1015 (1986), the

Sixth Circuit squarely rejected an argument that a racial

case is to compensate for the fact that direct evidence of intentional

discrimination is hard to come by.”); Perry v. Kunz, 878 F.2d 1056, 1059

(8th Cir. 1989) (“the McDonnell Douglas test was designed merely to aid

in discovering discrimination where only circumstantial evidence is

available”). However, this paradigm does not apply in sexual harassment

cases, where the reliance on an impermissable factor, sex, is directly and

conclusively established by the conduct itself. See Cline v. General

Electric Credit Auto Lease, 748 F. Supp. 650 (N.D. Ill. 1990).

'3 Where, as here, no inferential proof is necessary because the

plaintiff presents direct proof that an impermissible factor was present in

her treatment, circumstantial evidence merely supplements the initial

showing. Its absence cannot defeat plaintiff's claim. See, e.g., Davis v.

Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (Sth Cir. 1994) (“If there is

direct evidence that an employer placed substantial negative reliance on

an illegitimate criterion in reaching an employment decision, however,

resort to inferential methods of proof is unnecessary.”); Grant v. Hazelett

Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989) (direct evidence

of discrimination makes resort to circumstantial evidence unnecessary);

Perry v. Kunz, 878 F.2d 1056, 1059 (8th Cir. 1989) (same).

'* See, e.g., Boutros v. Canton Regional Transit Authority, 997

F.2d 198, 205 (6th Cir. 1993) (references to Arab plaintiff as a “camel

20

harassment plaintiff (under section 1981) needed to

demonstrate differential treatment relative to whites. There,

the defendant presented evidence that the plaintiff, a

Mexican-American, had himself engaged in racial harassment

of his white supervisees (777 F.2d at 1252) but the court

nevertheless found for the plaintiff. The court noted:

[R]equiring in all cases a demonstration that an employer

treated harassment claims of minority employees differently

from those of white employees would erode severely the

important protections courts have recognized under section

1981.” Jd. at 1258.

Finally, to argue that “discrimination” requires a

group-based showing of comparative mistreatment in addition

to a demonstration that an individual suffered an adverse job

consequence because of his or her sex contravenes the terms

and policy of the statute. 42 U.S.C. 2000e-2(a)(1), the basis

against individuals. As this Court has noted, “the basic policy

of the statute requires that we focus on fairness to individuals

rather than fairness to classes.” City of Los Angeles, Dep't of

Water and Power v. Manhart, 435 U.S. 702, 709 (1978).

D. The “Equal Opportunity Harasser” Is A

Red Herring, And The “Problem” It

Presents Is Not Particular To Same-Sex

Cases. '

_As discussed above, from the earliest days of the

statute's enforcement, courts easily determined that, even if

different groups receive identical treatment, Title VII is

violated where employers openly act on the basis of race or

sex (except in the rare instance that there is a bona fide

occupational qualification). Nevertheless, in sexual

harassment cases some courts have stumbled on the notion

21

that an “equal opportunity harasser” (sometimes, even more

absurdly, called a “bisexual harasser”) does not subject his or

her victims to harassment because of each one’s sex.

Once it is understood that “discrimination” against

both men and women is not impossible, and that harassing

sexual conduct always implicates the gender of the harassed

employee, it becomes clear why “equal opportunity”

harassment can provide no safe harbor from liability. Even

where a harasser affects members of both genders with equal

use of sexual epithets, innuendo, touching, unwanted

advances, and sexually degrading behavior, the status of the

harassee as a man or a woman is “inextricably intertwined” in

the sexual form the harassment takes, as well as its impact on

the harassee. Belleville, 1997 U.S. App. LEXIS 17940 at *45.

Each instance of sexual harassment must be judged

individually from the victim's perspective; if a supervisor

sexually harasses a male and a female worker, the result is not

that he is liable to neither, but that he is liable to both.'*

Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334, 1337

(D.Wy. 1993).

A person who sexually harasses both a man and a

woman discriminates against each, in the same way that a

'S CY Hutchison v. Amateur Electronic Supply, Inc., 42 F 34

1037, 1043 (7th Cir. 1994)(“That conduct is egregious enough to offend

the sensibilities of men as well as women cannot serve to immunize it for

Title VII purposes.”); Woods v. Graphic Communications, 925 F.2d

1195, 1198, 1202 (9th Cir. 1991) (finding violation as to African-

American employee where workplace polluted with “forms of hostility

directed at almost every conceivable racial and ethnic group”), Wyerick v.

Bayou Steel Corp., 887 F.2d 1271, 1275 (Sth Cir. 1989) (holding that it is

no defense to assert that workplace conditions were equally offensive to

men and women).

22

of both men and women by applying sex-based stereotypes to

each."* Unfortunately, it is all too possible to discriminate

against different individuals based on each person’s particular

sex, race, national origin, or religion. By illustration

evidence that an employer targeted members of many

different groups for race-based harassment -- calling Hispanic

employees “spics,” whites “crackers,” and Asians “chinks,”

for example -- would not render an employer immune from

liability.'’ An individual employee’s gender is no less

demeaned by sexual harassment if an employer subjects

members of both sexes to pervasive sexually-based ridicule,

to, and uninvited '

___ "® See, e.g., McDonnell v. Cisneros, 84 F 34 256 (7th Cir. 1996)

(pointing out that an employer's sexual harassment of men and of women

in the workplace would be actionable by each, because each would

experience harassment that was based in their status as a man or a

woman (Posner, J.) Chiapuzio v. BLT Operating Corp., 826 F. Supp.

1334, 1337 (D.Wy. 1993) (“{E}qual harassment of both genders does not

escape the purview of Title VII in the instant case. Where a harasser

violates both men and women ‘it is not unthinkable to argue that each

individual who is being harassed is being treated badly because of

gender’”).

'” See, e.g, Steiner v. Showboat Operating Company, 25 F 3d

1459, 1464 (9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995) (where

defendant defended with the assertion that the harasser abused everyone

in the workplace, “we do not rule out the possibility that both men and

women working at Showboat have viable claims against Trenkle for

sexual harassment”).

23

The sexual orientation of a harassed employee is also

irrelevant to determining whether sexual harassment 1s

actionable. Perception of lesbian or gay sexual orientation

may contribute to same-sex harassment in some cases, (see,

e.g., McWilliams v. Fairfax County Board of Supervisors, 72

F.3d 1191 (4th Cir. 1996); Quick v. Donaldson Co., 90 F.3d

1372 (8th Cir. 1996); Belleville, 1997 U.S. App. LEXIS

17940 at *95-96 (collecting cases)), but that is not a defense

because gender need only be a factor in the adverse treatment

for it to be actionable as discrimination, and gender and

sexual orientation, particularly in the context of sexual

harassment, are inextricably linked. See, e.g., supra, at 7

section I1(B)(1). The Belleville court pointed out that “it 1s

not always possible to rigidly compartmentalize the types of

bias that [sexist and homophobic] epithets represent,

Belleville at *96. Further, it should not make “a whit of

difference why [the plaintiff in Belleville] was singled out for

abuse; whether his harassers were motivated by his sex, by

his purported sexual orientation, or by some other factor, it

would seem that he has been harassed sexually and his gender

necessarily implicated.” Belleville, 1997 U.S. App. LEXIS

17940 at *94-95.

Sexually harassing conduct is not stripped of its

connection to sex when the harasser alleges or proves that he

acted as he did because of homophobia.'* Some harassers may

claim that they harassed a person sexually because of the

color of her eyes, or hair, or her figure, example. Obviously

this would not by itself render the harasser’s sexual conduct

lawful. The fact that a sexual harasser might have been

“inspired” by a different factor does not alter that the

harassment violates Title VII if it invokes sex to create a

sexually abusive environment.

Of course, sex (both meanings) and sexual orientation

are closely related. “Homosexuality,” like “heterosexuality,”

cannot even be defined without reference to both sex (gender)

demeaning or abusive can invoke gender albeit not in sexual terms. See

e.g., King v. Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994); Kopp v.

Samaritan Health Systems, Inc., 13 F.3d 264, 269 (8th Cir. 1993);

Andrews v. City of Philadelphia, 895 F.2d 1469, 1482, n.3 (3rd Cir.

1990).

'? Just as there is non-sexual gender-based conduct, there is also

sexual-orientation discrimination that is not sexual harassment. Amici's

position in this case that sexual harassment is per se because of sex, and

that Title VII liability for otherwise actionable sexual harassment is not

defeated whenever sexual orientation is introduced as a factor, does not

touch on the question of whether or under what circumstances non-

sexually harassing discrimination based on sexual orientation might so

profoundly turn on sex as to violate Title VII. This Court has never

addressed that question, and it should not do so in this context. Some

lower courts have held that Title VII does not address sexual orientation

discrimination, see, e.g., DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327

(9th Cir. 1979); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326-27 (Sth

Cir. 1978) (holding discrimination against “effeminate” males not sex

discrimination; arguably overruled by Price Waterhouse). But see

Macauley v. Massachusetts Comm'n Against Discrimination, 397 N.E.2d

670, 671 (Mass. 1979) (“As a matter of literal meaning, discrimination

against homosexuals could be treated as a species of discrimination

because of sex. . . . [H)omosexuality is . . . sex-linked”). The present

case does not present these questions, arising as they do outside the sexual!

harassment context, and this Court should not attempt to answer them

here.

25

and sexuality; it is the gender of one’s preferred sexual

partner that denotes sexual orientation. Further, gender

stereotyping is often associated with homosexuality. These

connections make particularly broad and untenable

Sundowner’s proposal to exempt from coverage of any sexual

harassment that a harasser suggests is tainted by a connection

to the victim’s or the harasser’s sexual orientation.” For

instance, it is clear that an employer violates Title VII if it

denies advancement to a woman because she is insufficiently

feminine. See Price Waterhouse v. Hopkins, 490 USS. 228,

255-56 (1989). An employer should not be able to immunize

itself from liability for sexual harassment by calling her a

lesbian. Nor should a male employee’s unwelcome sexual

advances be rendered beyond Title VII's reach if he claims to

have been provoked by his belief that his victim is a lesbian.

Ill. EXEMPTING SAME-SEX SEXUAL

HARASSMENT FROM TITLE VII’S

COVERAGE WOULD BE INCONSISTENT

WITH THIS COURT’S EQUAL PROTECTION

JURISPRUDENCE.

Otiaial einstifientions based on sm oe Biees ®

heightened scrutiny under the Court's equal protection —

ee "The burden of justification is demanding and it

rests entirely on the State. The State must show at least that

the challenged classification serves important governmental

objectives and that the discriminatory means employed are ;

substantially related to the achievement of those objectives.

US. v. Virginia, 116 S.Ct. 2264, 2275 (1996) (internal

20 coe Samuel A. Marcosson, Harassment on the Basis of Sexual

Orientation: A Claim of Sex Discrimination Under Title VII, 81 Geo. LJ.

1, 32 (1992) (“By its nature, sexual harassment is an attack that involves

the sexuality of the victim.”)

26

citations and quotations marks omitted).

It is also well settled that this heightened standard of

equal protection review applies not only to classifications that

disadvantage women, but also to classifications that appear to

advantage women or disadvantage men. JE. B. v. Alabama ex

rel. T.B., 511 U.S. 127 (1994) (holding unconstitutional,

under heightened scutiny, peremptory challenges exercised to

exclude male jurors); Mississippi University for Women v.

Hogan, 458 U.S. 718 (1982) (finding, under heightened

scrutiny, that nursing school’s exclusion of men violates the

Equal Protection Clause); Craig v. Boren, 429 U.S. 190

(1976) (striking state law that imposed disparate drinking

ages for men and women); Weinberger v. Weisenfeld, 420

U.S. 636 (1975) (striking federal statute that provided

disparate social security benefits to widows and widowers).

To dismiss Oncale's claim because he is a man rather

than a woman, as the Fifth Circuit did, is to hold that Title VII

claimants should be treated differently, based solely on their

sex, without any support for such a result in the statutory

language. It is no answer to maintain that the excluded

"same-sex harassment” would not create a sex-based

classification because it exempts members of each sex,

equally, from establishing liability for sexual harassment by a

perpetrator of the same sex. This Court rejected that analytic

canard in Loving v. Virginia, 388 U.S. 1 (1967).

It presents the same problem to add a spurious sexual-

orientation element, such as Sundowner advocates, only to

same-sex sexual harassment cases. For example, under such

a test, a female employee who is harassed by another woman

would have a different and more onerous evidentiary burden

than a similarly situated male victim, solely because of her

sex: she would have to further prove the sexual orientation of

her harasser, whereas for the male victim harassed by a

27

female such proof would be unnecessary. Conversely, a male

employee who is harassed by another man cannot properly be

required to satisfy a different and more stringent standard than

a similarly situated woman just because he is male.

Moreover, even if the sexual-orientation requirement

were now to be added to all claims, including those of

different-sex sexual harassment, the problem would resurface

in another way. Were such a new element of proof

introduced, a female employee who was harassed by a lesbian

would be protected under Title VII, but a male employee

subject to the same conduct by the same harasser would be

excluded from protection based on his male sex. Likewise, a

male employee harassed by a gay man would be protected,

but a female employee subject to the same conduct by the

same harasser would not. This is all contrary to the spirit of

Title VII and equal protection principles.

28

CONCLUSION

This Court should reverse because the Fifth Circuit’s

determination that no Title VII cause of action is stated where

a man alleges sexual harassment by male harassers is contrary

to this Court’s sexual harassment and Equal Protection

jurisprudence, and to Title VII’s terms, its purpose, and its

spirit.

Respectfully submitted,

Beatrice Dohrn*

Jon Davidson

Ruth Harlow

David Buckel

Lambda Legal Defense

and Education Fund

120 Wall Street, Suite 1500

New York, NY 10005-3904

(212) 809-8585

Attorneys for Amicus Curiae

*Counsel of Record

Dated: August 11, 1997

Steven R. Shapiro

Jennifer Middleton

Sara L. Mandelbaum

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

Of Counsel:

Minna J. Kotkin

Brooklyn Law School

1 Boerum Place

Brooklyn, NY 11201

APPENDIX A

Lambda Legal Defense and Education Fund

(“Lambda”) is a national organization committed to

achieving full recognition of the civil rights of lesbians, gay

men and people with HIV/AIDS, through impact litigation,

education and public policy work. In addition to litigating

sexual orientation and HIV/AIDS issues, including Romer v.

Evans, 116 S.Ct.1620 (1996), Lambda frequently appears as

amicus curiae in state and federal courts across the country.

Lambda is deeply concerned by the issues raised in this

case.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution and this nation’s civil

rights laws. It has appeared before this Court on numerous

occasions, both as direct counsel and as amicus curiae. The

ACLU has been deeply involved in the interpretation and

implementation of Title VII since its enactment, primarily

through the work of the ACLU’s Women’s Rights Project.

Through the work of its Lesbian and Gay Rights Project, the

ACLU has fought for equal rights on behalf of gays and

lesbians. This case thus raises issues of longstanding interest

to the ACLU and its members.

Bay Area Lawyers for Individual Freedom (BALIF) is

a minority bar association comprised of over 500 lesbian, gay

and bisexual members of the Bay Area legal community.

Founded in 1980, BALIF promotes the professional interests

of its members and the legal interests of the gay, lesbian and

bisexual community at large. As part of that mission, BALIF

actively participates in public policy debates concerning the

rights of lesbians, gay men and bisexuals. BALIF frequently

30

appears as amicus curiae in cases where it can provide

perspective and argument that will inform a court’s decision

on a matter of broad public importance. BALIF believes that

it is the nature of the harassing behavior, not the gender of the

harassed or of the harasser, that should determine the

applicability of Title VII. BALIF therefore opposes the Fifth

Circuit's decision in Oncale v. Sundowner Offshore Services.

The Connecticut Women’s Education and Legal Fund,

Inc. (CWEALF) is a non-profit women’s rights organization.

Incorporated in 1973, CWEALF has over 1,400 members.

The mission of the organization is to work through legal and

public policy strategies and community education to end sex

discrimination and to empower all women to be full and equal

participants in society. CWEALF has a long history of

working on both the issue of sexual harassment and the issue

of gay and lesbian civil rights. We believe that sexual

harassment is gender neutral and sexual-orientation neutral

and that therefore same-sex sexual harassment should be

actionable under Title VII.

Gay & Lesbian Advocates & Defenders (GLAD),

New England’s leading legal rights organization for lesbians.

gay men, bisexuals and people with HIV, works in the courts

and through public education to secure equal justice under

law. Since its founding in 1978, GLAD has counseled people

subjected to workplace discrimination, and has also appeared

as counsel and amicus curiae in a wide variety of cases

involving the scope of anti-discrimination protections and

same-sex sexual harassment in the workplace. GLAD is

interested in this case to demonstrate that existing sex

discrimination prohibitions properly focus on the nature of

the conduct involved, and must be interpreted to include a

prohibition on same-sex sexual harassment, regardless of the

sex or sexual orientation of the harasser or victim.

31

The National Center for Lesbian Rights (NCLR) isa

national nonprofit civil rights organization founded in 1977

and headquartered in San Francisco. NCLR's principle

objective is to secure and protect the civil rights of lesbian,

gay, and bisexual people through litigation and public

education. NCLR has a vital interest in securing fair and

equal treatment in the workplace for all people, without

regard to sexual orientation.

NOW Legal Defense and Education Fund (“NOW

LDEF”) is a leading national non-profit civil rights

organization that performs a broad range of legal and

educational services in support of women’s efforts to .

eliminate sex-based discrimination and secure equal rights.

NOW LDEF was founded in 1970 by leaders of the National

Organization for Women. A major goal of NOW LDEF is the

elimination of barriers that deny women economic

opportunities, such as sexual harassment. In furtherance of

that goal, NOW LDEF litigates cases to secure full

enforcement of laws prohibiting sexual harassment, including

Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486

(M.D. Fla. 1991), cross appeals dismissed per stipulation

(Mar. 14, 1995), and Townsend v. Indiana University, 995

F.2d 691 (7" Cir. 1993). NOW LDEF also has filed amicus

briefs in sexual harassment cases such as Harris v. Forklift

Systems Inc., 510 U.S. 17 (1993).

The National Women’s Law Center (“Center”) is a

non-profit legal advocacy organization dedicated to the

advancement and protection of women’s rights and the

corresponding elimination of sex discrimination from all

facets of American life. Since its inception in 1972, the

Center has worked continuously to make Title VII's promise

of equality in the workplace a reality. The Center has played

a major role in shaping sexual harassment law, participating

32

as amicus in sexual harassment cases before the Supreme

Court, including Meritor Savings Bank v. Vinson, Harris v.

Forklift Systems, Inc., and Franklin v. Gwinnett County Pub.

Sch., and as counsel and amicus in numerous sexual

harassment cases in the lower courts. The existence of

widespread sexual harassment in employment greatly restricts

the opportunity for women to participate as full partners in

the workplace. The Center has a deep and abiding interest in

ensuring that Title VII adequately protects all workers from

sexual harassment in employment.

The Northwest Women’s Law Center (NWLC) isa

Seattle-based public interest organization that works to

advance the legal rights of women in the Northwest through

litigation, education, legislation and the provision of legal

information and referral services. Founded in 1978, the

NWLC works to challenge all forms of sex discrimination

including that faced by lesbians and gay men. It has long

been the position of NWLC that sexual harassment and sex

discrimination laws apply equally and without regard to an

individual’s sexual orientation. In that regard the NWLC hes

participated in a wide range of litigation and legislative

advocacy challenging efforts to deny gay and lesbian

employees the full protection of state and federal civil rights

laws.

People for the American Way (“People For”) is a

nonpartisan citizens’ organization established to promote and

protect civil and constitutional rights. Founded in 1980 bya

group of religious, civic, and educational leaders devoted to

our nation’s heritage of tolerance, pluralism, and liberty,

People For now has over 300,000 members nationwide.

People For has been actively involved in efforts to combat

discrimination and promote equal rights, including efforts to

protect the rights of women and of gay men and lesbians,

33

through such activities as supporting the enactment of civil

rights legislation, participating in civil rights litigation, and

conducting programs and studies directed at reducing

problems of bias, injustice, and discrimination. People For

seeks to participate in this case in order to help vindicate the

important interests at stake, including the interest in the

uniform application of Title VII to all employees, regardless —

of gender, and the interest of every employee in a workplace

that is free from the type of egregious conduct that admittedly

occurred in this case.

The Women’s Legal Defense Fund (WLDF) is a non-

profit national advocacy organization founded in 1971 to

advance the rights of women in the areas of work and family.

WLDF advocates for equal employment opportunity through

litigation of sex discrimination cases, public education, and

advocacy for improved enforcement of EEO laws.

“6