Amicus Curiae Brief — Webber v. Kansas
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No. 96-568
IN THE
Supreme Court of the United.States
OCTOBER TERM, 1996
JOSEPH ONCALE,
Petitioner.
VS.
SUNDOWNER OFFSHORE SERVICES, INC., 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 NATIONAL ORGANIZATION ON MALE
SEXUAL VICTIMIZATION, INC.; MEN STOPPING
RAPE, INC.; OAKLAND MEN’S PROJECT, INC.;
MEN AGAINST PORNOGRAPHY; SEXUAL
EXPLOITATION EDUCATION PROJECT, INC.;
MEN OVERCOMING SEXUAL ASSAULT (a project of
BAY AREA WOMEN AGAINST RAPE, INC.);
STOP PRISONER RAPE, INC.; MEN OVERCOMING
VIOLENCE, INC.; COMMUNITY UNITED AGAINST
VIOLENCE, INC.; EMERGE: A MEN’S COUNSELING
SERVICE ON DOMESTIC VIOLENCE, INC.;
MEN STOPPING VIOLENCE, INC.; MEN’S RAPE
PREVENTION PROJECT, INC.; NEW YORK CITY GAY
& LESBIAN ANTI-VIOLENCE PROJECT, INC.;
and NATIONAL COALITION AGAINST SEXUAL
ASSAULT, INC., as Amici Curiae in Support of Petitioner
CATHARINE A. MACKINNON
625 South State Street
Ann Arbor, Michigan 48109-1215
(313) 647-3595
Counsel for Amici Curiae
Ce
2. Aggression That Is Sexual In
Nature Has Been Treated by
Courts as Facially Sex-Based .........
3. Harassment Is Sex-Discriminatory
When Sexual and One Sex Is
C. Neither the Rights of Victims Nor the
Liabilities of Perpetrators of Sexual
Harassment Should Turn on Their
1. Access to Sex Equality Relief for
Acts of Sexual Abuse Depends on
the Acts, Not on the Sexual
Preference of the Actors ...............+.
2. Harassment Because of
Homosexuality Is Harassment
Because OF SOK. .......cccrscecoscceesesccccceeee
III. THE EQUAL PROTECTION CLAUSE
FORBIDS EXEMPTING SAME-SEX
HARASSMENT CLAIMS FROM TITLE
Vee GIP TET cenisnsnetindieqentzeniscmmenpsesemnencee
a iiticciatisvicsnpiiotapnicinintinnicseomanisboersion
APPENDIX A (Descriptions of Amici Curiae) .........
APPENDIX B (Unpublished Decision Giddens v.
NE SD iiihinipeanseessicstabineninabadinceaseanicnirieiaeiinietnine
18
20
23
23
25
iii
TABLE OF AUTHORITIES
Cases: Page(s)
Andrews v. City of Philadelphia, 895 F.2d 1469 (3d
EES Ee 19
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Sup. Ct.
ES 27
Barnes v. Costle, 561 F.2d 983 (D.C. Cir.
EEE 5, 16, 17, 21
Baskerville v. Culligan Int'l] Co., 50 F.3d 428 (7th
EE 5
Benekritis v. Johnson, 882 F. Supp. 521 (D.S.C.
EERE EE REESE a een 6
Blueford v. Prunty, 108 F.3d 251 (9th Cir. 1997)...... 12
Bohen v. City of East Chicago, 799 F.2d 1180 (7th
EEE EES a 14
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F 3d
525 (ist Cir.), cert. denied, 116 S. Ct. 1044
SAE A 22
Bundy v. Jackson, 641 F.2d 934
Eee 16, 17, 18, 21
Caldwell v. KFC Corp., 958 F. Supp. 962 (D.N_J.
ES A, RE 6, 15
Callanan v. Runyun, 75 F.3d 1293 (8th Cir. 1995) ... 12
Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (\st
SESS oa 17
Connecticut v. Teal, 457 U.S. 440 (1982) ................. 15, 16
Craig v. Boren, 429 U.S. 190 (1976) ..........cccccccceeees 15
DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327 (9th
EG OER ANE LEE SAE SS 27, 28
iv
Cases: Page
Dillon v. Frank, No. 90-2290, 1992 WL 5436 (6th
Cle. Dam, BS, BR cccesnsstcncresnensnsenincintniccniemanesineme 9, 25, 26
Doe v. City of Belleville, 1997 WL 400219 (7th Cir.
ee passim
Dothard v. Rawlinson, 433 U.S. 321 (1977) ..........--. 8
E.E.O.C. v. Farmer Brothers Co., 3\ F.3d 891 (9th
Se, Fe ccrentnccstenncqmemantonncnnsasnsemnninimiues 20
E.E.O.C. v. Walden Book Co., Inc., 885 F. Supp.
tof § §. ee 24
Engel v. Worthington, 23 Cal. Rptr. 2d 329 (Ct.
Rag. Cal, 1 reccccscacsavessssenscnsssssnssesnersensussssasonssces 27
Farpella-Crosby v. Horizon Health Care, 97 F.3d
ee 19
Fleenor v. Hewitt Soap Co., 81 F.3d 48 (6th Cir.
BO cecesccnssserisnsterernntntnniinniceminineniinamntnnmnae 5
Fredette v. BVP Management Assocs., \\2 F.3d
byt). Le, een 5, 6, 15, 29
Garcia v. Elf Atochem North America, 28 F 3d 446
Le ere 6
Gerd v. United Parcel Serv., 934 F. Supp. 357 (D.
8 ee 18
Giddens v. Shell Oil Co., 12 F.3d 208 (Table)
(Sth Cir.) (Table), cert. denied, 513 U.S. 925
(a 6, App. B
Goluszek v. Smith, 697 F. Supp. 1452 (N.D. Ill
Pe esrcrcensstscesseccnrcsnscsnssessesiasoctnsnsanpesennecstacesueseassess passim
Griffith v. Keystone Steel & Wire, 887 F. Supp.
yi 4) OF ee 21
a I cl ell, cg ys. ell a a ae Ne a a aa eS a, Ey A ma
6 ee Re -
Case Page
Hall v. Gus Constr. Co., Inc., 842 F.2d 1010 (8th
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). 20, 21
Hopwood v. Univ. of Tex., 84 F.3d 720 (Sth Cir.),
cert. denied, 116 S. Ct. 2581 (1996)... eee. 29
Held v. Gulf Oil Co., 684 F.2d 427 (6th Cir. 1982)... 19
Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
iii hrcnissiistarctesleintiteienabdaiaitetadapaiinenintidtoantilionts 14, 17, 18, 21
Hopkins v. Balto. Gas & Elec. Co., 77 F.3d 745 (4th
Cir.), cert. denied, 117 S.Ct. 70 .0.........:c.cc0000- 6, 12, 18, 20
Horn v. Duke Homes, 755 F.2d 599 (7th Cir. 1985).. 20
Huebschen v. Dep't of Health and Soc. Servs., 716
Fe COE CN Gah CD cenescerecbanittemiennncien 15
lutchison vy. Amateur Elec. Supply, Inc., 42 F.3d
Se Cn Gas CE eiiccrcncnbitintiienstiiainntinsientmenemene 22
J_E.B. v. Alabama, 511 U.S. 127 (1994) .......0ccccccees 15
Johnson v. Hondo, Inc., 940 F. Supp. 1403
ES Sa ae SS 12
Johnson v. Transportation Agency, Santa Clara
County, 480 U.S. 616 (1987) .0.....ccccccccceeeeeceeeeneeens 29
Jones v. Flagship Int'l, 793 F.2d 714 (Sth Cir.
Se a ee 17
Kahn v. Shevin, 416 U.S. 351 (1974).....ccccccceceeseenees 8
King v. Bd. of Regents of the Univ. of Wis. Sys., 898
fs eee 19, 20
King v. M.R. Brown, Inc., 911 F. Supp. 161 (E.D.
es Se inciaicenenesstnrincmnpepemaitneipeciennetinniapeaveiaeties 6, 22
Cases: Page
King v. Town of Hanover, 959 F. Supp. 62 (D.N.H.
1996), aff'd on other grounds, 116 F.3d 965 (ist
Cae, Wee iceteaseocsencnsstecasstabicnvtasintinladiiceetesiiiitapinnsn 15, 20
Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264
NGI, IED cracientntcipunantitdeeciidaialidapaninidamates 22
Madon v. Laconia School District, 952 F. Supp. 44
Os, See hcrnptaliciatenicusngiitispianinnsiiiecatalinmacees 29
Martin v. Norfolk S. Ry., 926 F. Supp. 1044 (N.D.
FE, FI ebicensperetintaninnittnttrigninianneitiatisiarmen 9
Mayo v. Kiwest Corporation, 898 F. Supp. 335
CE Wa Dee aeeticeccnteteesntininntatninntinsiiagaitunscce: 12
McDonnell v. Cisneros, 84 F 3d 256 (7th Cir.
FO ccrtintasereniiemiaeseimmsintiniieieinzanieion 22
McWilliams v. Fairfax County Bd. of Supervisors,
72 F.3d 1191 (4th Cir. 1996), cert. denied, 117
ee passim
Melnychenko v. 84 Lumber Co., 424 Mass. 285, 676
Oe ) ee 12
Meritor Savings Bank v. Vinson, 477 U.S. 57
Cpe il incteidbiasiaatietntaliadindtumpasiiigtitebinnnimepnienieienmen 11, 14,21
Michael M. v. Super. Ct. of Sonoma County, 450
CR, GO Cae irtensscinsinsitccssnnisenptenemmnn 19
Miller v. Vesta, Inc., 946 F. Supp. 697 (E.D. Wisc.
PLT D icnciintitiesageieneiataiibmibidiietaeaieineppnanecisgremenesce 6
Miss. Univ. for Women v. Hogan, 458 U.S. 718
ES ea Oe ee 15
Morgan v. Mass. Gen. Hosp., 901 F.2d 186 (1st Cir
FO cxsninctiicsttbiiisininnpibatiliparndiiiernminiesvemnbiniiiianenas 5
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).. 9, 10, 28
A eee ee =
a
ee
Cases:
Newport News Shipbuilding & Dry Dock Co. v.
E.E.0.C., 462 U.S. 669 (1983) ..ccccccccccsssesssesesesonen
Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994)...........
Oncale v. Sundowner Offshore Services, Inc., 83
F.3d 118 (Sth. Cir. 1996), cert. granted.................
Orr. v. Orr, 440 U.S. 268 (1979) .0....cccccccccccceeeeeeeeees
Plessy v. Ferguson, 163 U.S. 537 (1896) ..................
Polly v. Houston Lighting & Power Co., 825 F.
RS
Pontarelli v. Stone, 930 F.2d 104 (1st Cir. 1991)......
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)..
Purrington v. Univ. of Utah, 996 F.2d 1025 (10th
Se TP acetiicibdieneninhiterdenieisinlnitpneniedaaniinainpsineimecernese
Ci, 1994) qaaccccccsscocsne Mat Ube a
Rabidue v. Osceola Ref. Co., 805 F.2d 611 (6th Cir.
1986), cert. denied, 481 U.S. 1041 (1987)............
Raney v. Dist. of Columbia, 892 F. Supp. 283
as acecdilattdinsetnibbtiniabedetepiionentetennssicnonateess
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265
Romer v. Evans, 116 S. Ct. 1620 (1996)...
Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006
(Sth Cir: 1996), cert. denied, 117 S. Ct. 165
Ryczek v. Guest Services, Inc., 877 F. Supp. 754
Ee WENNNE EN clicindiitinieniniielasiemsisieigtabhinrinambnisntintetiees
10,
21
22
Cases: Page
Saulpaugh v. Monroe Community Hosp., 4 F.3d 134
(2d Cir. 1993), cert. denied, 510 U.S. 1164
9 ei rcartnsscagnesincszecinnsectgniatieniinsasiniamenneensnmennees 5
Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996)...... 12
Shelley v. Kramer, 334 U.S. 1 (1948) ......ccccccscseeeseees 15
Sprogis v. United Air Lines, Inc., 444 F.2d 1198
(7th Cir. 1971), cert. denied, 404 U.S. 991 (1971) 11
Steiner v. Showboat Operating Co., 25 F.3d 1459
(9th Cir. 1994), cert. denied, 513 U.S. 1082
Ce iccstsresnhscevsieneinisiiseenincintanesnbanadtiapintmnnnenee 5, 22
Stewart v. Weis Markets, Inc., 890 F. Supp. 382
ED Fa. CE eccnintectaielbirsineennetinnitcinenennemncen 17
Storey v. Chase Bankcard Services, 1997 WL
414730 (D. Ariz., July 21, 1997) .....cccccceceeeeeeees 29
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402
SS Re iisincteiesterecerstniehietnaneperetincsrionestennens 29
Tanner v. Prima Donna Resorts, Inc., 919 F. Supp.
Fe Gr Pe, Ge ttttanteteiatinieinnnen 24
Tietgen v. Brown's Westminster Motors, Inc., 921 F.
Supp. 1495 (E.D.Va. 1996).........cccccseeeeceeeneereees 12, 18, 20
Tomkins v. Pub. Serv. Elec. & Gas Co., 568 F.2d
eee ene 5, 14
Ton v. Information Resources, Inc., 70 F.E.P. Cases
SES GS Ee. CUED cetncteststenintncinnineniemmtetoninones 6,7
Torres v. Nat'l Precision Blanking, 943 F. Supp.
SED GE Tee ee ccnterstictccninemsarinmsreeacnsiinccse 6
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th
Cir. 1984), cert. denied, 471 U.S. 1017 (1985) ..... 28
United States v. Virginia, 116 S.Ct. 2264 (1996)......
ee! Al lS
Cases:
Valadez v. Uncle Julio's of Ill., Inc., 895 F. Supp.
ERD Gtk, BID cociuiitcscnesensscinecesccntncbessencanenses
Vandeventer v. Wabash Nat'l Corp., 887 F. Supp.
Fe PRI GED. SOFT tinsincinccnnecinessnotscucsncostantceccce
Vandeventer v. Wabash Nat'l Corp., 867 F. Supp.
Fe Bs ee cecccvinecenciscteresndicscenccnssesonsccsecs
Vinson v. Taylor, 760 F.2d 1330 (D.C. Cir. 1985)...
Walker vy, IRS, 713 F. Supp. 403 (N.D. Ga. 1989).....
Waltman vy. Int'l Paper Co., 875 F.2d 468 (Sth Cir.
Re EE sh i RE
te REISE SEE A tek Ra PE io nc
Wehrle v. Office Depot, Inc., 954 F. Supp. 234
I TTI csr sere cisnscetingnstanhistanbioapesescesieces
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)........
Wengler v. Druggists Mutual ins. Co., 446 U.S. 142
Wright v. Methodist Youth Services, 511 F. Supp.
Fe a EE PI eektaidhienciinsrenditctadeininiovesntvcosccces
Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138
EEE TEs SUIT decttentrichnicteamnsiebescpebilentepesunsstictimnesnenscoes
Wyerick v. Bayou Sieel Corp., 887 F.2d 1271 (Sth
Ss atti ieciialticdialicscaiteelattibis nities seubbsbemaienen
Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d
ap ne STE tecicterteinictttnerstrintessenenssntvecineees
Yusef v. Vassar College, 35 F.3d 709 (2d Cir. 1994)
Page
29
Other Legal Authorities:
Seis ts IIIT, TIED cntnssnieensicisiniathinelinneapaniiniainnesttnas
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
FE ED ctstirsceinennisishintesctcndmninpanmenisnceaniinatecanies
2 EEOC Compliance Manual § 615.2(b)(5) (1974 &
NE: SNe icceinisieddateadsenilinichiteetiedseranatnatteninniapganeee
Scholarly Authorities:
Susan Brownmiller, AGAINST OUR WILL: MEN,
WOMEN AND RAPE (1975)............cccccccccccesseeeeesceeees
Bureau of Justice Statistics 1994 National Crime
Victimization Survey, BUREAU OF JUSTICE
STATISTICS BULLETIN (April 1996).............c00000
Rus Erwin Funk, Men Who Rape, in MICHAEL
SCARCE, MALE ON MALE RAPE: THE HIDDEN
TOLL OF STIGMA AND SHAME (1997).................005
The Glass Ceiling Commission, GOOD FOR
BUSINESS: MAKING FULL USE OF THE NATION’S
NE Ces CR iicneeietbditintnticeinisntinarnicnsscseses
Michael B. King, Male Rape in Institutional
Settings, in GILLIAN C. MEZEY AND MICHAEL B.
KING, EDS., MALE VICTIMS OF SEXUAL ASSAULT
Andrew Koppelman, ANTIDISCRIMINATION LAW
AND SOCIAL EQUITY (1996).......cccccccoccccssescesssesseses
Judith Lorber, PARADOXES OF GENDER (1994)..........
Catharine A. MacKinnon, SEXUAL HARASSMENT OF
WORKING WOMEN (1979) ............::sccceessscseceesesereeees
Catharine A. MacKinnon, TOWARD A FEMINIST
THEORY OF THE STATE (1989).............ccccceeeeeeeeeeeee
10
27
13
18
6 ee eet,
xi
Page
Note, Sexual Harassment Claims of Abusive Work
Environment Under Title V1], 97 HARV. L. REV.
PE aeiinicicinltaiststahiniaitdabusncamteriinhiemimitenctn 8
Fred Pelka, Raped: A Male Survivor Breaks His
I Se Sere IN anita tedeecscdinadiecitntddinnssavecs 11
Michael Scarce, MALE ON MALE RAPE: THE HIDDEN
TOLL OF STIGMA AND SHAME (1997) ..........00cce0000 9, 13, 23
John Stoltenberg, REFUSING TO BE A MAN (1989) .... 10
Jim Struve, Dancing With the Patriarchy: The
Politics of Sexual Abuse, in Mic Hunter, ed., THE
SEXUALLY ABUSED MALE (1990) ...............ccccceeees 10
— tre 4 Gt,
POA ted Blinn ts Bom
STATEMENT OF INTEREST OF AMICI CURIAE
Pursuant to Rule 37 of the Rules of the Supreme Court,’
Amici Curiae herein file this brief in support of petitioner,
Joseph Oncale.
Amici Curiae National Organization on Male Sexual Vic-
timization, Men Stopping Rape, Oakland Men’s Project, Men
Against Pornography, Sexual Exploitation Education Project,
Men Overcoming Sexual Assault (a project of Bay Area
Women Against Rape), Stop Prisoner Rape, Men Overcoming
Violence, Community United Against Violence, Emerge: A
Men’s Counseling Service on Domestic Violence, Men Stop-
ping Violence, Men’s Rape Prevention Project, New York
City Gay & Lesbian Anti-Violence Project, and National
Coalition Against Sexual Assault are organizations dedicated
to ending sexual violence. Many provide professional services
to male survivors of sexual abuse by other men. Some of the
groups include men who have been sexually assaulted by
other men. Most amici engage in community education and
other expert activities, policy consultation, and activism. All
share an interest in advancing principles of sex equality to re-
dress and prevent sexual assault and related social patterns of
sex-based subordination.
Amici recognize that when women and men are sexually
violated, verbally or physically, they are targeted and harmed
as women and as men. Amici are united in the view that same-
sex sexual harassment, no less than opposite-sex sexual har-
assment, violates civil rights to sex equality under law. They
believe that citizens should have a right to seek redress of
such injuries.
' Letters from both parties consenting to the filing of this brief have been
filed with the Clerk of this Court. No counsel for a party authored this
brief in whole or in part. No person or entity other than amici or their
counsel made a monetary contribution to its preparation, production, and
submission.
2
Through their experiences and work, amici have learned
that sexual abuse of men by men is a serious and neglected
social problem inextricably connected to sexual abuse of
women by men. Male sexual aggression has widespread
negative effects and deep roots in sex inequality in society.
Amici believe that perpetrators of sexual harassment should
derive no legal immunity from the gender of their victims.
Amici thus share an interest in the legal recognition of Joseph
Oncale’s right to sue for sexual harassment by his male supe-
riors as sex discrimination under Title VII.
Statements describing each amicus organization more spe-
cifically may be found at App. A.
STATEMENT OF FACTS
Joseph Oncale was employed from August to November of
1991 by Sundowner Offshore Services, Inc., as a roustabout
on an oil rig in the sea for $7 an hour, seven days on, seven
days off. E.E.0.C. Affidavit, Chg #270920368 (December 5,
1991) (“Aff.”). It was a dangerous, isolated job in an all-male
environment. Oncale Dep., Jan. 20, 1995 at 69. (“Dep.”) As
accepted on this motion, three men sexually harassed him
there: John Lyons, his Sundowner supervisor, and Danny
Pippen and Brandon Johnson, two Sundowner coworkers.
John Lyons began his sexual advances and sexual objectifi-
cation of Oncale early in his employment. Dep. at 40:8-9
(“You know you got a cute little ass, boy”). Lyons said he
was going to “fuck me in my behind.” Aff. at 1. He threatened
to rape him. Dep. at 41-42. (“‘If I don’t get you now, I'll get
you later. I’m going to get you. You're going to give it to
me’... [H]e said that I would have sex with him before it was
over’ at 42.) Such remarks were constant.
On October 25, 1991, Oncale was first sexually attacked
physically. Aff. at 1. Pippen grabbed him, pulled him down,
and held him immobile in a squatting position on his knees
while Lyons unzipped his pants, pulled out his penis, and
stuck it onto the back of Oncale’s head. Dep. at 49-52. Oncale
asked them to quit. Dep. at 53:2-3. Lyons and Pippen
3
laughed. Dep. at 53:8-9. Oncale later that day learned that
most of his coworkers had seen the assault. Dep. at 53:2-3;
Aff. at 2.
The next day, Brandon Johnson chose a dangerous moment
on the job to grab Oncale and force him to the ground again.
Dep. at 55. Lyons pulled his penis out and put it on Oncale’s
arm. Dep. at 57. Oncale complained to superiors. Aff. at 1.
That same night, Lyons and Pippen attempted to rape On-
cale as he was taking a shower. Pippen grabbed him, lifting
him off the ground by the knees, while “John Lyons grabs the
bar of soap and rubbed it between the cheeks of my ass and
tells me, you know, they're fixing to fuck me....” Dep. at 58.
Oncale struggled and got away. Dep. at 60. He believed the
intentions of Lyons were “to rape me” and those of Pippen
were “to assist and/or help...rape me, too.” Dep. at 72.
Oncale complained further and tried to arrange to get off
the oil rig. The sexual advances and sexual threats continued.
John Lyons said: “You told your daddy, huh? Well, it ain't
going to do you no good because I’m going to fuck you any-
way.” Dep. at 74. Oncale “felt that if I didn’t leave my job,
that I would be raped or forced to have sex...that if 1 didn’t get
off the rig, that 1 would be sexually violated.” Dep. at 73.
Oncale continued to try to work but “couldn't sleep be-
cause | was afraid that they would do something to me, |
couldn't fight, and I felt disgraced.” Aff. at 2. Oncale quit
soon thereafter, stating on his pink slip that he “voluntarily
left due to sexual harassment and verbal abuse.” Aff. at At-
tachment 1. On December 5, 1991, he filed a complaint for
sexual harassment with the E.E.0.C. His suit for sex dis-
crimination under Title VII complained of both hostile envi-
ronment and guid pro quo sexual harassment, Complaint for
Damages, CA No. 94-1483 (E.D. La. 1994): “I felt that it was
almost to a point where it was my livelihood.” Dep. at 43.
In 1993, Oncale began experiencing severe panic attacks
and other episodes of long-term post-traumatic stress. Dep. at
21. He became dizzy, numb in his hands, and had a rapid
4
heartbeat, which symptoms he continues to attempt to control
and treat with medication and counseling. Dep. at 20-21.
SUMMARY OF ARGUMENT
Men raping men is a serious and neglected social problem
with deep roots in gender inequality. Courts generally permit
men who have been sexually assaulted and otherwise sexually
harassed by other men at work to sue under Title VII of the
Civil Rights Act of 1964, as women can. The Fifth Circuit
decision under review is a pernicious legal anomaly, categori-
cally precluding equality relief on summary disposition sim-
ply because the victim and victimizer are of the same sex. Its
double standard of gender justice denies men rights because
they are men—with negative implications for gay and lesbian
rights as well, as exemplified by the related Fourth Circuit
approach, under which heterosexual perpetrators may commit
acts for which homosexual perpetrators are held legally re-
sponsible. These decisions make accountability for sex dis-
crimination turn on who one is, not on what is done.
The better approach advanced by amici, building on the
vast body of judicial precedent, is not abstract but concrete.
Whether an assault is “because of sex,” triggering Title VII, is
a factual determination. Other legal requisites being met, if
acts are sexual and hurt one sex, they are sex-based, regard-
less of the gender and sexual orientation of the parties.
The Fifth Circuit decision at bar is bottomed on miscon-
ceptions about the gendered nature of the sexual abuse of
men, particularly its connections to the inequality of women
to men and of gays and lesbians to heterosexuals. Male
rape—whether the victim is male or female—is an act of male
dominance, marking such acts as obviously gender-based and
making access to sex equality rights for Joseph Oncale indis-
putable.
The Equal Protection Clause of the Fourteenth Amend-
ment, as well as clear statutory principles, requires recogniz-
ing same-sex sexual assault as unquestionably actionable as
sex discrimination under Title VII as a matter of law. The
5
decision of the Fifth Circuit in this case must accordingly be
reversed.
ARGUMENT
INTRODUCTION
The Fifth Circuit stands alone in precluding Title VII ac-
cess for same-sex sexual harassment. Every other circuit that
has considered the question, whether in rulings, Doe v. City of
Belleville, No. 95-3634, 1997 WL 400219, at *9 (7th Cir. July
17, 1997) (“Doe”), Fredette v. BVP Management Assocs., |12
F.3d 1503, 1510 (11th Cir. 1997); Yeary v. Goodwill Indus. -
Knoxville, Inc., 107 F.3d 443, 448 (6th Cir. 1997); Wrightson
v. Pizza Hut of Am., Inc., 99 F.3d 138, 141 (4th Cir. 1996),
but cf, McWilliams v. Fairfax County Bd. of Supervisors, 72
F.3d 1191, 1196 (4th Cir.), cert. denied, 117 S. Ct. 72 (1996),
Quick v. Donaldson Co. Inc., 90 F.3d 1372, 1379 (8th Cir.
1994), or in dicta, e.g., Baskerville v. Culligan Int'l Co., 50
F.3d 428, 430 (7th Cir. 1995); Steiner v. Showboat Operating
Co., 25 F.3d 1459, 1464 (9th Cir. 1994), cert. denied, 513
U.S. 1082 (1995); Saulpaugh v. Monroe Community Hosp., 4
F.3d 134, 148 (2d Cir. 1993) (Van Graafeiland, J., concur-
ring), cert. denied, 510 U.S. 1164 (1994); Vinson v. Taylor,
760 F.2d 1330, 1333 n.7 (D.C. Cir. 1985) (Bork, J., with
whom Scalia and Starr, JJ., join, dissenting from denial of re-
hearing en banc), Barnes v. Costle, 561 F.2d 983, 990 n.55
(D.C. Cir. 1977); Tomkins v. Pub. Serv. Elec. & Gas Co., 568
F.2d 1044, 1047 n.4 (3d Cir. 1977), has found some allega-
tions of harassment of men by men to state legally sufficient
cicims under Title VII's sex discrimination prohibition. See
also Fleenor v. Hewitt Soap Co., 81 F.3d 48, 49 (6th Cir.),
cert. denied, 117 S. Ct. 170 (1996); Purrington v. Univ. of
Utah, 996 F.2d 1025, 1028-31 (10th Cir. 1993); Morgan v.
Mass. Gen. Hosp., 901 F.2d 186, 192-193 (ist Cir. 1990).
The foundation of Oncale and fountainhead of its legal er-
ror is Goluszek v. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988).
Goluszek held that while women sexually harassed by men
have a Title VII remedy, because women are unequal to men
at work, men sexually harassed by men have none, because an
all-male male-dominated environment cannot discriminate
against a man as a man. Sexually victimized men are thus de-
nied access to civil rights remedies when other men sexually
violate or demean them at work in circumstances in which
identically situated women have clear claims.
Repudiated in its own circuit by Doe at *9, and by every
other Court of Amreals that has considered it, Fredette, 112
F.3d at 1509; Hopkirs v. Balto. Gas & Elec. Co., 77 F.3d 745,
751 (4th Cir.) (Niemeyer, J.), cert. denied, 117 S. Ct. 70
(1996), and by a number of district courts, see, e.g., Miller v.
Vesta, Inc., 946 F. Supp. 697, 704 (E.D. Wisc. 1996); King v.
M. R. Brown, Inc., 911 F. Supp. 161, 167 (E.D. Pa. 1995), the
Goluszek opinion was nevertheless relied upon by the Fifth
Circuit in its decision in Garcia v. Elf Atochem North Amer-
ica, 28 F.3d 446 (Sth Cir. 1994), to summarily rule that a man
who was sexually attacked by a man on his job could not sue
under Title VII. Garcia’s only other authority was an unpub-
lished Fifth Circuit ruling, Giddens v. Shell Oil Co., 12 F.3d
208 (Sth Cir.) (Table), cert. denied, 513 U.S. 925 (1994),
which analyzed the issue in three sentences with no citations.
Giddens v. Shell Oil Co., No. 92-08533 (Sth Cir. Dec. 6,
1993). (See App. B for full text.) Oncale v. Sundowner Off-
shore Servs., Inc., 83 F.3d 118, 119-120 (Sth Cir. 1996), cert.
granted, 138 L.Ed. 2d 192 (1997), “in what can only be de-
scribed as a lukewarm endorsement,” Caldwell v. KFC Corp.,
958 F. Supp. 962, 968 n.3 (D.N.J. 1997), affirmed Garcia as
precedent, leading to the present petition.
The many courts that have recognized the actionability of
same-sex harassment claims before and since Goluszek have
relied on the plain language of the statute, the clear weight of
authority in sexual harassment cases, and deference to
E.E.0.C. guidelines. They have used simple logic, equality
principle, life experience, and common sense. The handful of
courts that has refused to recognize the claim—principally
district courts in circuits that have since allowed it, see, e.g,
Benekritis v. Johnson, 882 F. Supp. 521, 526 (D.S.C. 1995);
Torres v. Nat'l Precision Blanking, 943 F. Supp. 952, 953
(N.D. Ill. 1996)}—trely on Goluszek. See Ton v. Information
7
Resources, Inc., 70 F.E.P. Cases 355, 360 (N.D. Ill. 1996)
(tracing impact and criticisms of Goluszek).
I. SEXUAL ABUSE OF MEN BY MEN IS A
SERIOUS SOCIAL PROBLEM OF GENDER
INEQUALITY.
Amici—as survivors of and experts on male-on-male sexual
abuse—submit that Goluszek, hence the Fifth Circuit reliance
on it, incorrectly analyzed the sexual abuse of men by men.
Men are discriminated against based on their sex when sexu-
ally aggressed against by other men. They are targeted as
men—usually as certain kinds of men—to be victimized
through their masculinity, violated in their minds and bodies
as individual members of their gender, as gender is socially
defined.
A. Male Dominance in Society Includes Sexual
Dominance of Some Men Over Other Men
as Well as Over Women.
Anthony Goluszek’s male coworkers verbally tormented
him in sexually explicit ways, demeaned his adequacy as a
man, accused him of being gay or bisexual based on his reti-
cence to have or discuss an interest in “fucking” women, and
poked his buttocks with a stick. Goluszek, 697 F. Supp. at
1454. Nonetheless the Goluszek court ruled that he was not
discriminated against based on his sex because the purpose of
Title VII is to redress “an imbalance of power and an abuse of
that imbalance by the powerful which results in discrimina-
tion against a discrete and vulnerable group[,]” namely
women. /d at 1456. Because Goluszek was “a male in a male-
dominated environment,” id, he could not, the court found,
have suffered an environment “that treated males as infe-
rior{.J” Jd Conceding that Goluszek “may have been harassed
‘because’ he is a male,” id, the court nonetheless dismissed
his claims because the acts complained of could not have cre-
ated “an anti-male environment” for him at work. /d
Goluszek’s workplace was unmistakably a male-dominated
environment. This Court has observed that they exist. See,
e.g., Kahn v. Shevin, 416 U.S. 351, 353 (1974) (noting “the
socialization process of a male-dominated culture” as source
of women’s poverty); Dothard v. Rawlinson, 433 U.S. 321.
334-335 (1977) (women excluded from contact jobs in male-
only prisons due to atmosphere of violence against men). Sex
segregation combined with gender hierarchy in the workforce
ensures that many, perhaps most workplaces are dominated
by men, in numbers or power or both. See generally THE
GLASS CEILING COMMISSION, GOOD FOR BUSINESS: MAKING
FULL USE OF THE NATION’S HUMAN CaPITAL (1995). Sex in-
tegration addresses the sex-discriminatory composition of all-
male environments, see, e.g, United States v. Virginia, 116 S.
Ct. 2264 (1996), but the sex-discriminatory norms long en-
demic to such settings—under which men may sexually vic-
mize othere—must also be addressed to make sex equality
Amici strongly agree with the Goluszek court i
Vil—certainly as amended and interpreted cli Rage
aimed at rectifying sex-based power imbalances and stopping
male abuses of power in the workplace. But men abuse male
power over other men as well as over women. To conclude,
from the fact that women are differentially sexually abused at
work, that men who are abused are not abused as
a ee Se nee Lene VE SOE, SUNS at only
ysis . . . 2 s-.
+ assumptions, misreadings,” and in
The Goluszek opinion displays several common m
about male-on-male sexual abuse with which amie! are fa.
miliar in their work: that men, acting as members of their
gender, cannot and do not dominate other men as well as
* The note cited in Goluszek attributes the “disproportionate exposure of
women to heterosexual sexual harassment” to the “historically inferior
Position of women in a male-dominated work force” to justify its own
valid focus on sexual harassment of men by women. Note, Sexual Har-
assment Claims of Abusive Work Environment Under Title VII, 97 HARV.
L. REV. 1449, 1467 n.1 (1984). The note does not say or imply that male-
on-male sexual harassment is not actionable.
9
women; that when a man sexually abuses another man, the
actions are not sexual and not gender-based; and that male
domination of some men over other men is not part of the so-
cial system whereby men dominate women.
In the world of Goluszek, men in all-male environments do
not oppress other men in sex-specific ways. As one district
court, in following Goluszek, put it: “This theory focuses on
whether there is an atmosphere of oppression by a ‘dominant
gender,” and thus assumes that the harasser and victim must
be of opposing genders.” Martin v. Norfolk S. Ry., 926 F.
Supp. 1044, 1049 (N.D. Ala. 1996). Masculinity is assumed
to be uniform, gender making all men sufficiently equal to
one another that no man can be in a significant position of
powerlessness relative to another man. But as study after
study has shown, all-male environments are frequently char-
acterized by extreme hierarchy well-documented to breed
sexual abuse of men by men, whether from “a sense of macho
competition, violence as a rite of passage, an expression of
dominant status, or an initiation of hazing.” MICHAEL
SCARCE, MALE ON MALE RaPE: THE HIDDEN TOLL OF STIGMA
AND SHAME 35 (1997) (“Scarce”) (14 studies reviewed at | 1-
34).
Men are most often raped by other men when there are no
women around: in prisons, in confined and isolated work
sites, in men’s schools and colleges, in the military, in athlet-
ics, in fraternities. Michael B. King, Male Rape in Institu-
tional Settings, in MALE VICTIMS OF SEXUAL ASSAULT 67
(Gillian C. Mezey & Michael B. King eds., 1992). Men sexu-
ally abuse those they have power over in society: first, women
and children; then other men, typically on the basis of their
status as men of a particular age, Dep. at 4:6 (age 21); physi-
cal stature, Dep. at 59:25 (weight of “125, 135”); ethnicity,
Goluszek, 697 F. Supp. at 1453 (Polish); race, Scarce, at 18
(African-American men disproportionately victimized); dis-
ability, McWilliams 72 F.3d at 1193 (learning disability),
Ward v. Ridley Sch. Dist., 940 F. Supp. 810, 811 (E.D. Pa.
1996) (mentally retarded); or sexual orientation, perceived,
Dillon v. Frank, No. 90-2290, 1992 WL 5436, at *7 (6th Cir.
Jan. 15, 1992), or actual, Nabozny v. Podlesny, 92 F.3d 446,
451 (7th Cir. 1996), that makes them attractive for, or vulner-
able to, male sexual aggression.
The Goluszek court held that a man cannot be made inferior
as a man in an all-male setting. But both Goluszek and Oncale
were treated as inferior men in very standard ways—Oncale
more violently. Oncale’s attackers were asserting male domi-
nance through imposing sex on a man with less power. Men
who are sexually assaulted are thereby stripped of their social
status as men. They are feminized: made to serve the function
and play the role customarily assigned to women as men’s
social inferiors. In terms that apply to male-on-male rape gen-
erally, Susan Brownmiller analyzes prison rape of men as “an
acting out of power roles within an all-male, authoritarian en-
vironment in which the weaker, younger inmate...is forced to
play the role that in the outside world is assigned to women.”
SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN,
AND RAPE 258 (1975). This lowers the victim’s status, making
him inferior as a man by social standards. For a man to be
sexually attacked, by placing him in a woman’s role, demeans
his masculinity; he loses it, so to speak. This cannot be done
to a woman. What he loses, he loses through gender, as a
man. See generally Jim Struve, Dancing With the Patriarchy:
The Politics of Sexual Abuse, in THE SEXUALLY ABUSED
MALE 3 (Mic Hunter, ed., 1990).
Often it is men perceived not to conform to stereotyped
gender roles who are the targets of male sexual aggression.
Goluszek was taunted for appearing unwilling to oppress
women sexually. Because he did not conform to his male co-
workers’ view of what his gender behavior ought to be, be-
cause he was not seen to be practicing sexual objectification
and subordination of women, he was seen as less a man ac-
cording to their sex- standards. See Price Water-
house v. Hopkins, 490 U.S. 228, 251 (1989) (sex stereotyping
actionable as sex discrimination). See generally JOHN
STOLTENBERG, REFUSING TO BE A MAN 41-56 (1989).
Goluszek was punished, ostracized, insulted, and forced to
consume pornography to make him conform to their
— —_s
stereotype of how a man should be a man by subordinating
women sexually. He was subjected to homophobic slurs re-
flecting the common assumption that if he is not “fucking” a
woman, he is no longer a man as male supremacy defines it.
“Having his gender questioned,” Doe at *4, marked
Goluszek’s abuse as sex-based. Title VII's goal of “strik[ing]
at the entire spectrum of disparate treatment of men and
women resulting from sex stereotypes,” Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404
U.S. 991 (1971) (part quoted with approval in Meritor Sav-
ings Bank v. Vinson, 477 U.S. 57, 64 (1986)), clearly inter-
cepts such acts.
The reading of Title VII by Goluszek and its progeny did
nothing for women except use their powerlessness to justify
doing nothing for relatively powerless men. The errors in On-
cale predicated upon it should not be followed by this Court.
B. Denial of Sex and Gender in Male-on-Male
Sexual Abuse Maintains Male Dominance.
The gravamen of Goluszek is that male same-sex aggres-
sion is not gendered in the sense Title VII requires. Implicit is
an insistence that men cannot be sexually dominated in their
social status or roles as men. The denial that interactions
among men can have a sexual component, and that sexual
abuse of men is gendered, are twin features of the social ide-
ology of male dominance with which amici are familiar as
experts. In this ideology, men are seen as sexually invulner-
able. This image protects men from much male sexual vio-
lence and naturalizes the sexual abuse of women, making it
seem that women, biologically, are sexual victims. Denying
that men can be sexually abused as men thus supports the
gender hierarchy of men over women in society. The illusion
is preserved that men are sexually inviolable, hence naturally
superior, as the sexual abuse of men by men is kept invisible.
See Fred Pelka, Raped: A Male Survivor Breaks His Silence,
ON THE ISSUES, Spring 1992, at 8.
Accordingly, some courts jump to de-sexualize and de-
gender male-on-male sexual aggression. In denying access to
12
equality relief, they call the behavior at issue “horseplay,”
McWilliams, 72 F.3d at 1194; “mere locker room antics,” 7i-
etgen v. Brown's Westminster Motors, Inc., 921 F. Supp.
1495, 1501 (E.D. Va. 1996) (allowing same-sex suit); being
“razzed,” Vandeventer v. Wabash Nat’t Corp., 867 F. Supp.
790, 796 (N.D. Ind. 1994), rev'd, 887 F. Supp. 1178 (N.D.
Ind. 1995); and “a personal grudge match,” Johnson vy.
Hondo, Inc., 940 F. Supp. 1403, 1410 (E.D. Wisc. 1996).
They pass it off as “puerile and repulsive,” McWilliams, 72
F.3d at 1196; “diffuse” and “ambiguous,” Hopkins, 77 F.3d at
753; “offensive and tasteless,” id. at 755; obsessive, insecure,
vulgar, insensitive, and mean, McWilliams, 72 F.3d at 1196;
“crude and offensive,” Mayo v. Kiwest Corporation, 898 F.
Supp. 335, 337 (E.D. Va. 1995); “physically violent and sa-
distic...malevolence and spite,” Melnychenko v. 84 Lumber
Co., 424 Mass. 285, 287 n.4, 676 N.E. 2d 45, 47 n.4 (Mass.
1997) (from lower court decision); “cretinous,” Callanan v.
Runyun, 75 F.3d 1293, 1298 n.5 (8th Cir. 1996), and “trash
talk,” Blueford v. Prunty, 108 F.3d 251. 254 (9th Cir. 1997).
The point is to call the behavior anything but sexual and at-
tribute it to anything but gender. Amazingly, even gender is
used to deny gender, for example, “boys will be boys”—a
gendered description if ever there was one—being considered
not gender-based. Seamons v. Snow, 84 F.3d 1226, 1240,
1241 (10th Cir. 1996). That the behavior described may be
everything these courts say it is does not mean that it is not
sexual and gendered, hence sex-based.
Denial that sexual abuse of men by men is sexual in nature
is a common feature of male dominance. When a man’s testi-
cles are aggressively grabbed, it takes a lot to deny that the
attack has something to do with the fact he is a man, but the
district court managed it in Quick v. Donaldson Co., Inc. 895
F. Supp. 1288 (S.D. Ia. 1995), rev'd, 90 F.3d 1372 (8th Cir.
1996). Attacks focused on male sexual organs are sexual at-
tacks, hence sexual. With the Seventh Circuit, “frankly, we
find it hard to think of a situation in which someone inten-
tionally grabs another’s testicles for reasons entirely unrelated
to that person’s gender.” Doe at *15. Similarly, when men rub
another man’s penis until it becomes erect, blindfold him and
oN PR RP NORE et Bt aed eS att, ath ete
ln 0
13
force him to his knees and put their fingers into his mouth in
simulated fellatio, expose their genitals to him, put a broom
handle between his buttocks, ask him for sex, offer to pay him
money for sex, unzip their fly and invite him into a restroom
stall, flick their tongue and say “I love you” while sex is dis-
cussed, see McWilliams, 72 F.3d at 1198-99 (Michael, J., dis-
senting) (facts), powerful denial is required to deem the
conduct anything but sexual. But, in McWilliams, because the
perpetrators “were” heterosexual, the Fourth Circuit imagined
this aggression to be
“because of” the victim’s known or believed prud-
ery, or shyness, or other form of vulnerability to
sexually-focussed speech or conduct. Perhaps
“because of” the perpetrators’ own sexual perver-
sion, or obsession, or insecurity. Certainly, “because
of” their vulgarity and insensitivity and meanness of
spirit. But not specifically “because of the victim's
sex.
Id. at 1196 (italics in original). None of the conjectured moti-
vations excludes gender as the driving force in all of them.
Moreover, motivation need not be exclusively gender-based
to be actionably gender-based. Price Waterhouse, 490 U.S. at
241 (under Title VII mix of gender and other motives is
“because of sex”) (plurality). See also Civil Rights Act of
1991, §107(a), 42 U.S.C. §2000e-2(m) 105 Stat. 1074-1076
(1994).
Moral disapprobation is no substitute for equality analysis
and legal accountability. The acts against Mr. McWilliams
were neither gender-neutral nor indiscriminate; they asserted
male dominance. He was targeted as a man, a certain kind of
man the court described as having “arrested ... cognitive and
emotional development.” 72 F.3d at 1193. “Men’s rape of
women is a hateful act designed to reinforce male supremacy.
So is men’s rape of men.” Rus Ervin Funk, Men Who Are
Raped, in Scarce, at 222. He was abused as women are so of-
ten abused—except that women, when their sexuality hence
14
9 gender is assailed by men at work, have a Title VII rem-
y.
Il. SEXUAL HARASSMENT OF MEN BY MEN
IS SEX-BASED ABUSE UNDER SEX
EQUALITY GUARANTEES AS A MATTER
OF LAW.
A. Sex Discrimination Law, Hence Sexual
Harassment Law, Protects Both Sexes.
Sexual harassment is legally recognized as a form of sex-
based discrimination. There is no question that both Title VII
and the Equal Protection Clause of the Fourteenth Amend-
ment, under which sexual harassment is also actionable, Bo-
hen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir.
1986); Pontarelli v. Stone, 930 F.2d 104, 113-14 (1st Cir.
1991), protect both sexes equally, even if, due to gender
inequality in society, these provisions, as applied, do not al-
ways affect the sexes in precisely the same way.
The plain language of Title VII protects all individuals
from sex discrimination: “It shall be an unlawful employment
practice for an employer...to discriminate against any individ-
ual with respect to his...terms, conditions, or privileges of
employment, because of such individual’s...sex....” 42 U.S.C.
§2000e-2(a)(1) 78 Stat. 255 (1994). In deciding that this pro-
hibition on discrimination “because of such individual’s sex”
applied to men, this Court stated: “Male as well as female
employees are protected against discrimination.” Newport
News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S.
669, 682 (1983).
Other than in the Goluszek line of cases, sexual harassment
law has uniformly followed the same rule for over twenty
years, prohibiting unequal sexual predation at work regardless
of the gender of the parties. See Tomkins, 568 F.2d at 1047
n.4; Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir.
1982) (quoted with approval in Meritor, 477 U.S. at 66-67.)
As the Ninth Circuit put this principle: “a// individuals—male
or female—belong to a ‘protected’ group for purposes of
jules ital! sea ~~ s
ea a a a
15
determining discrimination on the basis of their sex.” Nichols
v. Frank, 42 F.3d 503, 511 (9th Cir. 1994) (emphasis in origi-
nal). Just as men unquestionably can bring Title VII claims
when sexually harassed by women, Huebschen v. Dept of
Health and Soc. Servs., 716 F.2d 1167, 1172 (7th Cir. 1983),
and women when sexually harassed by men, nothing except
Goluszek and the Fifth Circuit says that men cannot bring the
same claims women can bring, including claims against men.
No one has legal carte blanche to discriminate against
members of their own racial or gender group. See Walker v.
IRS, 713 F. Supp. 403 (N.D. Ga. 1989). Nor does any basic
principle of equality law or the Supreme Court's recognition
of the claim for a sexually hostile working environment re-
strict the relief available to survivors based on the gender of
discriminator or victim. King v. Town of Hanover, 959 F.
Supp. 62, 66 (D.N.H. 1996), aff'd. on other grounds, 116
F.3d 965 (1st Cir. 1997). As noted by the Eleventh Circuit in
ruling that same-sex harassment is actionable under Title VII,
“There is simply no suggestion in these statutory terms that
the cause of action is limited to opposite gender contexts.”
Fredette, 112 F.3d at 1505. Accord Caldwell, 958 F.Supp. at
968.
Title VII and the protections of the Constitution’s Equal
Protection Clause, as interpreted, form a single body of
equality law on this point. Not only is the standard of review
for women and men the same, Miss. Univ. for Women vy.
Hogan, 458 U.S. 718, 723 & n.8 (1982), but this Court’s ba-
sic sex equality doctrine has been largely built in cases of men
seeking sex equality rights, see, e.g., Orr v. Orr, 440 U.S. 268
(1979); Craig v. Boren, 429 U.S. 190 (1976); Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975), to choose only a few.
Equality rights, while based on group membership, are per-
sonal rights. Shelley v. Kramer, 334 U.S. 1, 22 (1948). “The
neutral phrasing of the Equal Protection Clause, extending its
guarantee to ‘any person,’ reveals its concern with rights of
individuals{.]” J.E.B. v. Alabama, 511 U.S. 127, 152 (1994)
(Kennedy, J., concurring) (males excluded from jury service
16
because of gender violates equal protection); see also Con-
necticut v. Teal, 457 U.S. 440, 455-56 (1982). While the Con-
stitution, like Title VII, is rightly concerned for members of
groups who have traditionally been subjected to systematic
discrimination, it has never confined individual access to
equality relief to members of such groups. Regents of Univ. of
Cal. v. Bakke, 438 U.S. 265 (1978). Individual men may need
equality rights particularly when, as here, their situation is
exceptional among men and/or they are in situations in which
women, as members of the subordinated gender group, are
more typically found. See, e.g., Weinberger, supra (widower
father caring for newborn baby at home); Hogan, supra (man
seeking admission to nursing school).
B. Same-Sex Harassment Is Facially Sex-Based
When It Is Sexual and One Sex Is
Victimized.
To be actionable as sex discrimination, an impugned be-
havior must be “because of sex.” When a man sexually har-
asses another man, how do we know it was “because of sex”?
Drawing on over twenty years of judicial development of
the legal claim for sexual harassment, the answer is the same
for men as for women, for gay men and lesbian women as for
heterosexual women and men. It is a question of fact. For
purposes of motions testing the legal sufficiency of sexual
harassment claims, sexual allegations are facially gender-
based. When, in addition, one sex is disadvantaged, sex-based
discrimination is unambiguously claimed as a matter of law.
1. Whether Alleged Acts Are “Based on
Sex” Is a Question of Fact.
The first two appellate cases to establish the legal claim for
sexual harassment, Barnes, supra (quid pro quo), and Bundy
v. Jackson, 641 F.2d 934 (D.C. Cir. 1981) (hostile environ-
ment), took the view that whether or not behavior was sex-
based under Title VII was a question of fact. To overcome
motions to dismiss arguing that sexual harassment of a
woman by a man was not sex-based as a matter of law
17
because the same thing could have been done to a man, the
D.C. Circuit thought that what mattered was not what could
have been done but what was done.
Thus, in Barnes, the D.C. Circuit held: “But for her wom-
anhood, from aught that appears, her participation in sexual
activity would never have been solicited...” Barnes, 561 F.2d
at 990 (emphasis added). Sticking to facts circumvented the
sophistic argument that because sexual harassment could be
done to either or both sexes, it was not sex-based when done
to one. To the Barnes court, the plaintiff's allegations were
sex-based due to “the fact that [defendant] imposed upon
her...a condition which ostensibly he would not have fastened
upon a male employee.” Barnes, 561 F.2d at 989 n.49.
“Ostensibly” meaning, on the facts alleged. As the Barnes
court further clarified, “Appellant flatly claims that but for her
gender she would not have been importuned, and nothing to
the contrary has as yet appeared, and there is no suggestion
that appellant’s allegedly amorous supervisor is other than
heterosexual. These are matters for proof at trial...” Id.
(emphasis added). In Bundy, the D.C. Circuit glossed this
formulation, considering same-sex as well as opposite-sex
harassment: “in each instance the question is one of but-for
causation: would the complaining employee have suffered the
harassment had he or she been of a different gender?” Bundy,
641 F.2d at 942 n.7. In other words, the conceptual possibility
of bisexual or homosexual harassment was not allowed to
preclude a trial on the facts of heterosexual harassment, in this
case, of a woman by a man.
Later courts followed the “but for sex” test in case after
case of male-on-female harassment. See, e.g., Jones v. Flag-
ship Int'l, 793 F.2d 714, 719 (Sth Cir. 1986), cert. denied,
479 U.S. 1065 (1987); Chamberlin v. 101 Realty, Inc., 915
F.2d 777, 784 (1st Cir. 1990); Stewart v. Weis Markets, Inc.,
890 F. Supp. 382, 390 (M.D. Pa. 1995). The widely followed
opinion in Henson formulated it: “In the typical case in which
a male supervisor makes sexual overtures to a female worker,
it is obvious that the supervisor did not treat male employees
in a similar fashion. It will therefore be a simple matter for the
=
18
plaintiff to prove that but for her sex, she would not have been
subjected to sexual harassment.” Henson, 682 F.2d at 904
(citing Bundy, 641 F.2d at 942 n.7). Why “obvious”? Do
courts assume that if behavior is heterosexual, it is gendered?
They may. But there was no allegation to the contrary. Noth-
ing else appearing, courts infer that the behavior is gender-
based as heterosexuality is gender-based.
Denials of facial challenges in the same-sex harassment
context have taken the same approach: factual. Wehrle v. Of-
fice Depot, Inc., 954 F. Supp. 234, 236 (W.D. Okla. 1996)
(male-on-male, gender basis is issue of fact for trial); Gerd v.
United Parcel Serv., Inc., 934 F. Supp. 357, 361 (D. Colo.
1996) (male-on-male, motive and causation “tend to be fact
specific and should not be resolved under Fed.R.Civ.P. 12”).
Some judges believe that opposite-sex harassment cases
make knowing that the behavior is sex-based relatively easy,
while same-sex cases make it comparatively hard. Hopkins,
77 F.3d at 753-54 (“ambiguously sexual innuendos” at 754).
Amici disagree. The facts are no more likely to be clear or
murky in same-sex than in opposite-sex cases. The view that
opposite-sex settings are easily gendered while same-sex set-
tings are not reflects a presumption of heterosexuality. Cor-
rectly understood, the same tests developed to determine
whether harassment is gender-based in cases between women
and men—is it sexual? is one sex harmed?—apply equally in
cases between women and between men.
2. Aggression That Is Sexual Has Been
Treated by Courts as Facially Sex-
Based.
Sexuality is gendered in societies of sex inequality. See
CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF
THE STATE 126-131 (1989); CATHARINE A. MACKINNON,
SEXUAL HARASSMENT OF WORKING WOMEN 182-183 (1979).
As a result, for better or worse, in most instances “{i}t is the
essence of sexual conduct between two individuals that the
one initiating or inviting the conduct normally does so be-
cause of the other’s sex.” Tietgen, 921 F. Supp. at 1500-01.
a
19
Courts adjudicating sexual harassment claims reflect this state
of affairs when they unproblematically consider that sexual
allegations are gender-based allegations. “Sexual harassment
is ordinarily based on sex. What else could it be based on?”
Nichols, 42 F.3d at 511 (emphasis in original). See also Mi-
chael M. v. Super. Ct. of Sonoma County, 450 U.S. 464
(1981) (statutory rape law on “intercourse” treated as facially
sex-based).
Without requiring genital proof, courts routinely deem op-
posite-sex harassment “unquestionably based on gender,”
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806
n.2 (5th Cir. 1996), simply because the facts alleged are sex-
ual facts. Thus, for example, from facts of “sex-based oppro-
brium,” “statements implying that her sexual charms had
something to do with sales,” and “constant lectures pertaining
to her sex life,” the conclusion is drawn than an environment
is sex biased. Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th
Cir. 1982). The Third Circuit observed, “[T]he intent to dis-
criminate on the basis of sex in cases involving sexual propo-
sitions, innuendo, pornographic materials, or sexually
derogatory language is implicit, and thus should be recog-
nized as a matter of course.” Andrews v. City of Philadelphia,
895 F.2d 1469, 1482 n.3 (3d Cir. 1990). Sexuality is so obvi-
ously gendered that courts have sometimes felt the need to
stress that sexuality isn’t a// there is to Title VII's gender-
harassment prohibition. See, e.g. Hall v. Gus Constr. Co.,
Inc., 842 F.2d 1010, 1014 (8th Cir. 1988). Courts have prop-
erly rejected out of hand the argument that sexual initiatives
by a man to a woman were not gender-based because “his ac-
tions were merely the result of his desire for King as an indi-
vidual and, therefore, were not sex-based harassment.” King
v. Bd. of Regents of the Univ. of Wis. Sys., 898 F.2d 533, 538
(7th Cir. 1990). Persons are sexually gendered as individuals.
* That sexual allegations are facially gender-based would be a good reason
that no separate proof of intent or motive going to “basis in sex” has gen-
erally been required in sexual harassment cases.
The view “if it’s sexual, it’s gendered” has also guided
same-sex cases. In one male-on-male case, “[t]he earnest sex-
ual solicitation alleged...provides a firm basis for the infer-
ence that [plaintiff] was harassed because of his gender.”
Tietgen, 921 F. Supp. at 1502. In another, statements referring
to male-on-male fellatio and gestures indicating sex with a
penis meant that “the very nature of the conduct alleged raises
the inference that Hamill directed his behavior at the plaintiff
because he was male.” King, 959 F. Supp. at 66.
The underlying question of whether impugned treatment is
or is not sexual is itself a question of fact—subtle at times,
often anything but. Sexually speaking, two men saying “we're
going to fuck you” and one pulling out his penis, Dep. at
58:23-24, 57, is hardly subtle. Behavior can be hostile, pro-
duce anguish or distress (and intend to), King, 898 F.2d at
539-40, or aim to demean, Waltman v. Int'l Paper Co., 875
F.2d 468, 471-72, 482 (Sth Cir. 1989), and still be sexual.
Producing fear in another, or abusing power, see Horn v.
Duke Homes, 755 F.2d 599, 601-603 (7th Cir. 1985)
(defendant used supervisory power to fulfill his sexual de-
sires), can be sexually arousing or potentiating to the perpe-
trator. See generally E.E.O.C. v. Farmer Brothers Co., 31
F.3d 891, 897-98 (9th Cir. 1994) (discussing motives).
But the genders of the perpetrator and the victim do not
dispose of whether a given behavior is sexual or not. One
cannot presume that behavior that is sexual in opposite-sex
contexts is not sexual in same-sex contexts, as Judge
Neimeyer does in Hopkins, 77 F.3d at 752-53. Just as acts do
not automatically become sexual simply because they are en-
gaged in by members of different sexes, acts do not become
nonsexual simply because they are engaged in by members of
the same sex. No differential presumptions are appropriate.
3. Harassment Is Sex-Discriminatory When
Sexual and One Sex Is Victimized.
Concurring in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), a case of male-on-female sexual harassment, Justice
Ginsburg clarified that, in proving discrimination based on
21
sex as required in Meritor, 477 U.S. at 66, “[t}he critical issue,
Title VII's text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employ-
ment to which members of the other sex are not exposed.”
Harris, 510 U.S. at 25 (Ginsburg, J., concurring) (citation
omitted). The E.E.0.C.’s directive on same-sex harassment
uses precisely these terms: “The victim does not have to be of
the opposite sex of the harasser. Since sexual harassment is a
form of sexual discrimination, the crucial inquiry is whether
the harasser treats a member or members of one sex differ-
ently from members of the other sex.” 2 EEOC Compliance
Manual §615.2(b)(3) (1974 & Supp. 1996). Same-sex har-
assment courts have applied this “singles out one sex” rule
with no difficulty. See, e.g, Raney v. Dist. of Columbia, 892
F. Supp. 283, 287-88 (D.D.C. 1995); Griffith v. Keystone
Steel & Wire, 887 F. Supp. 1133, 1137 (C.D. Ill. 1995).
Counting heads across the gender line may not capture every
sex-based disparity, but only one sex is harmed in every fed-
erally reported sexual harassment case to date.
Although not a question raised by this appeal, even when
both sexes are victimized by sexual harassment, sex discrimi-
nation can result, some dicta to the contrary notwithstanding.
The so-called bisexual harasser, eluding equality snares by
indiscriminately sexually harassing men and women alike,"
stalks the judicial imagination, cutting quite a figure in legal
hypotheticals.’ But in more than twenty years, an actual
* It should not be assumed that gender plays no role in bisexuals’ choice
of sexual partners.
* The Barnes court distinguished the heterosexual and same-sex harasser
from the bisexual superior, for whom “the insistence upon sexual favors
would not constitute gender discrimination because it would apply to male
and female employees alike.” Barnes, 561 F.2d at 990 n.55. Accord,
Bundy, 641 F.2d at 942 n.7 (same). Several subsequent courts have made
similar statements, none on facts before them. Henson, 682 F.2d at 904;
Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1016 (Sth Cir.), cert.
denied, \17 S. Ct. 165 (1996); Rabidue v. Osceola Ref. Co., 805 F.2d 611,
620 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987), Vinson v. Taylor,
760 F.2d 1330, 1333 n.7 (D.C. Cir. 1985) (Bork, J., dissenting), aff'd,
(Footnote continued)
22
equal-opportunity harasser has yet to be sighted in federal
court.® It is settled law in sexual harassment cases that (1)
plaintiff must allege one sex is harmed to state a legally suffi-
cient prima facie case; (2) defendant must plead and prove the
defense that both sexes are harmed, not raise it as a defect in
law pre-trial; and (3) to prevail, the harm must be proven to
be actually equal. Nothing in the same-sex context disturbs
these resolutions.
Meritor, supra, and Ryczek v. Guest Services, Inc., 877 F. Supp. 754, 762
(D.D.C. 1995).
* While equal discrimination is a clear oxymoron, see Brown v. r.ot, Sexy
and Safer Prods., Inc., 68 F.3d 525, 541 (ist Cir. 1995), cert. denied, 116
S. Ct. 1044 (1996), this Court’s constitutional sex equality jurisprudence
recognizes that both sexes can be discriminated against based on sex at the
same time from a single practice. Wengler v. Druggists Mutual Ins. Co.,
446 U.S. 142 (1980). Yet to amici’s knowledge, the federal courts have
never yet found it to be in a sexual harassment context. Steiner, supra,
came closest, but the Ninth Circuit saw through it, observing that “while
[defendant's] abuse of men in no way related to their gender, his abuse of
female employees...centered on the fact that they were females.” Steiner,
25 F.3d at 1464. So did the Eighth Circuit in finding that “a fact-finder
could conclude that Albaghdadi’s treatment of women is worse than his
treatment of men{,]” so the claim was gender-based. Kopp v. Samaritan
Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993). Chief Judge Posner
disavowed the practical effect in dicta: “It would be exceea.gly perverse
if a male worker could buy his supervisors and his company immunity
from Title VII liability by taking care to harass sexually an occasional
male worker, although his preferred targets were female.” McDonnell v.
Cisneros, 84 F.3d 256, 260 (7th Cir. 1996). See Waltman, 875 F.2d at 477
n.3 (rejecting “equal offensiveness” defense on facts); Wyerick v. Bayou
Steel Corp., 887 F.2d 1271, 1275 (Sth Cir. 1989) (same); Hutchison v.
Amateur Elec. Supply, Inc., 42 F.3d 1037, 1043 (7th Cir. 1994). See also
King, 911 F. Supp. 161 (E.D. Pa. 1995) (woman's claim against company
for sexual harassment by both woman and man found sex-based).
23
C. Neither the Rights of Victims Nor the
Liabilities of Perpetrators of Sexual
Harassment Should Turn on Their Sexual
Orientation.
The sexual orientation of the parties inevitably arises in,’
and is implicated in ruling on, same-sex harassment. The
sexual orientation of the parties is, however, properly irrele-
vant to the legal sufficiency of sexual harassment claims. An
accused perpetrator’s being gay or lesbian does not make that
person’s behavior sex-based, but sexual orientation may be
pertinent in determining whether particular behavior is based
on sex, see Doe at *20-*21, in the totality of the circum-
stances.
1. Access to Sex Equality Relief for Acts of
Sexual Abuse Depends on the Acts, Not
on the Sexual Preference of the Actors.
Wright v. Methodist Youth Services, 511 F. Supp. 307
(N.D. Ill. 1981), the first reported case of same-sex sexual
harassment, held that a man fired because he rejected the sex-
ual advances of his male supervisor stated a claim for sex dis-
crimination under Title VII. Wright described the behavior as
“homosexual advances,” id. at 308, 309, although so far as is
known, most men who sexually abuse other men are hetero-
sexual. Scarce at 17 (summarizing results of 14 empirical
studies at 15). The Wright ruling thus established that same-
sex sexual advances were sex-based within the meaning of
Title VII in a context that linked that result to the sexual pref-
erence of the perpetrator.
The emerging rule is to regard sexual orientation as not
determinative of the legal sufficiency of same-sex claims as a
’ “I feel that they made homosexual advances toward me. | feel they are
homosexuals.” Dep. at 41:23-24. The Fifth Circuit described the threats to
Oncale as “threats of homosexual rape” but did not address sexual
orientation, Oncale, 63 F.3d at 118, nor do the certified questions in this
case state an issue of homosexuality as such.
24
matter of law but to admit it as relevant on the facts. Perpe-
trator sexual orientation does not make unwanted sexual ini-
tiatives sex-based any more than victim sexual orientation
makes unwanted advances welcome, although both can be
relevant (if sometimes only minimally) to both factual deter-
minations. See Yeary, 107 F.3d at 447-48. It is not categori-
cally irrelevant because “[w]Jhen a homosexual supervisor is
making offensive sexual advances to a subordinate of the
same sex, and not doing so to employees of the opposite sex,
it absolutely is a situation where, but for the subordinate’s
sex, he would not be subjected to that treatment.” E.E.0.C. v.
Walden Book Co., Inc., 885 F. Supp. 1100, 1103-1104 (M.D.
Tenn. 1995); Tanner v. Prima Donna Resorts, Inc., 919 F.
Supp. 351, 355 (D. Nev. 1996) (sexual preference of the har-
asser irrelevant to summary determination). See also Vande-
venter, 887 F. Supp. at 1180. Although care must be taken
that this approach does not create an opening for homophobic
attacks, the rule itself merely applies the same standard to
everyone.
Sexual orientation on its face disposes of nothing. Gay men
do not initiate unwanted sex to all men any more than lesbian
women welcome sexual attention from all women. Needless
to say, from knowing a person is gay, one cannot deduce that
they sexually harassed another person. But the fact that a per-
petrator of same-sex harassment is not gay—or not known to
be gay or proveably gay—also does not render same-sex sex-
ual behavior not sex-based. Thus the Fourth Circuit’s view
that same-sex sexual harassment by heterosexual men cannot
be sex-based, McWilliams, 90 F.3d at 1194-1195, but harass-
ment by homosexual men can be, Wrightson, 99 F.3d at 143,
is wrong on many grounds. Those boys who were just boys in
the machine shop in McWilliams became sexual and gendered
when they ran the restaurant in Wrightson? Beyond misread-
ing social reality, the Fourth Circuit approach is impractical
(courts are now to adjudicate a person’s “real” sexual orienta-
tion?), incoherent (a victim’s recovery for sexual abuse de-
pends on what the perpetrator does with voluntary others?),
and invidious (heterosexuals may sexually abuse people
whom homosexuals may not?). On the Fourth Circuit's view,
25
if a plaintiff could prove that one of the “baggers” in Quick
actually “is” gay, would his testicle-grabbing become sex-
based, while the identical act of the straight coworker next to
him is not?
By definition, sexual harassment is unwanted, so victim
sexual orientation is as irrelevant on same-sex facial chal-
lenges on sex-basis as it is on opposite-sex ones. The sexual
orientation of the victim cannot convert aggression that is sex-
based into aggression that is not, or vice-versa.
Will Title VII access now turn on the sexual feelings and
imagined or real sexual identities of perpetrators? Will it have
one sexual harassment rule for gay sexual harassers and an-
other for straight ones? one for those whose sexual feelings
have coalesced, another for those whose sexual feelings are
diverse, diffuse, denied, deniable, unknown, or simply un-
proveable? Oncale sued for forced sex. Why should the gen-
der of those with whom Lyons and Pippen are sexual, when
others want to be sexual with them, determine Oncale’s rights
against them for violating (what is conventionally considered)
his manhood?
2. Harassment Because of Homosexuality
Is Harassment Because of Sex.
In practical terms, harassment because of homosexuality
cannot be separated from harassment because of sex. The
gender of sexual object choice (although not all there is to
sexual orientation) partly defines gender in society. The gen-
der of a person with whom one has sex, or is thought to have
sex, is a powerful constituent of whether one is considered a
woman or a man in society. See generally JUDITH LORBER,
PARADOXES OF GENDER 55-79 (1994).
The pitfalls of trying to separate the two are illustrated by
Dillon. Mr. Dillon was taunted, ostracized, and physically
beaten by coworkers because they believed he was gay. They
called him “fag” and other terms of homophobic abuse, he
said, because he was a man. The Sixth Circuit, admitting his
harassment was “clearly sexual in nature,” Dillon, 1992 WL
26
5436 at *6, rejected his Title VII claim, saying it was because
of homosexuality not sex. So far as is discernible in the opin-
ion, Mr. Dillon is heterosexual. In the view of amici, he was
harassed as a male. Women are not called “fag.” When
women are seen as effeminate, they are rewarded, or sexually
harassed in ways clearly marked as sex-specific. Dillon
should not have had to prove facts that did not exist, such as
that “his coworkers would have treated a similarly situated
woman...differently,” or to argue that “a lesbian would have
been accepted.” /d. at *9. Hypothetical counterfactuals cannot
be proven. That the behavior was sexual, and that no women
were, in fact, subjected to it (supported in Dillon’s case by
evidence of clearly homophobic attacks) should be enough.
Only men are subject to denigration by gay-bashing taunts
like “faggot.” Only women are subject to denigration by the
use of terms like “dyke” as epithet and insult. Such abuse is
inherently socially gendered. Using sex with members of
one’s own sex as derision, insult, and hostility denigrates the
target’s gender-adequacy. Such terms, when part of sexual
harassment, create a hostile environment for men as men and
for women as women, whether directed at straights or gays.
Because they attack individuals as members of their gender
group, they are based on sex.
Separating sexuality from gender, hence harassment due to
gender from harassment due to sexual orientation, is impracti-
cal and would lead to anomalous results, as Valadez v. Uncle
Julio's of Ill., Inc., 895 F. Supp. 1008 (N.D. Ill. 1995), illus-
trates. The male defendant had “crudely discussed his desire
to engage in sexual activities with [lesbian] plaintiff and other
female employees, both lesbian and non-lesbian.” Valadez,
895 F. Supp. at 1014. He made advances “to plain-
tiff...because she was a woman as well as a lesbian.” Jd. He
made such comments to other women, lesbians and nonlesbi-
ans, and no men. The court found this conduct gender-based.
It did not find defendant’s advances to straight women action-
able as sex-based and those to lesbian women not actionable
as based on sexual orientation. As the Valadez court percep-
tively noted, “defendant argues that because [he] was aroused
27
by the fact that plaintiff is a lesbian his subsequent conduct is
not actionable. Whether plaintiff would have enjoyed having
sex with [him] is not the issue.” Jd. The advances were doubly
gender-based: because she is a woman, and because she is a
woman who loves women. Disallowing such claims will, as a
practical matter, leave lesbian women often without recourse.
Although this appeal does not require resolution of the
question, amici submit that sexual harassment because of sex-
ual orientation is sex-based discrimination. When individuals
are sexually harassed because of the sex of their sexual part-
ners, real or imagined, they are harassed because of sex. First,
formally speaking, those harassed because they are gay men
or lesbian women are harassed because of the gender of their
sexual partners and identification. If their own gender, or that
of their loved ones, were different, they would not be so
treated. They are precisely similarly situated to heterosexuals
in having sexual relationships based on gender yet are treated
differently because of their own gender, the gender of their
sexual partners, or both. See Baehr v. Lewin, 74 Haw. 530,
852 P.2d 44 (Sup. Ct. Haw. 1994) (prohibition on same-sex
marriage prohibited sex classification under Hawaii Constitu-
tion); Engel v. Worthington, 23 Cal. Rptr. 2d 329 (Ct. App.
Cal. 1994) (unpublished). See ANDREW KOPPELMAN, AN-
TIDISCRIMINATION LAW AND SOCIAL EQUALITY 153-158
(1996). Second, more substantively, gay men and lesbian
women, through challenging the naturalness and inevitability
of gendered-unequal roles in sex, challenge the sexual dimen-
sion of gender inequality under which sexual violence by men
against women, and some men, is widespread. BUREAU OF
JUSTICE STATISTICS 1994 NATIONAL CRIME VICTIMIZATION
SURVEY, BUREAU OF JUSTICE STATISTICS BULLETIN 4 (1996)
(5% of rapes reported to survey of victims age 12 and over are
of men).
Third, usually both gay men and lesbian women are not
sexually harassed by the same harasser. Equal oppression—
discrimination seen as based not on gender but on sexual ori-
entation, hence not covered, DeSantis v. Pac. Tel. & Tel. Co.
Ine., 608 F.2d 327 (9th Cir. 1979), however misguidedly—
28
may occur in this context scarcely more often than bisexual
harassment appears to. In any case, sex equality rights are in-
dividual rights. It is no answer to victimization based on the
supposed gender-inappropriateness of one’s sexuality that
others of another sex who make the corresponding “error” are
also discriminated against. Equal discrimination in this sense
is sex discrimination two times over, not no discrimination at
all.
Ill. THE EQUAL PROTECTION CLAUSE
FORBIDS EXEMPTING SAME-SEX
HARASSMENT CLAIMS FROM TITLE VII
COVERAGE.
The Fifth Circuit’s approach in Oncale creates a blatant
double standard in sexual harassment cases based on gender,
and potentially on sexual orientation as well, that denies sur-
vivors equal protection of the laws. Men are denied legal
protection women have. Under the Fourth Circuit’s extension,
straight perpetrators can freely commit sexual aggression for
which gay perpetrators are held accountable. And because
sexual harassment due to sexual orientation, wrongly, is re-
garded as not covered by Title VII, DeSantis, 608 F.2d at 329-
30; Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084-85
(7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985), some
courts have concluded that “Title VII does not protect homo-
sexuals from harassment...since such treatment arises from
their affectional preference rather than their sex.” Polly v.
Houston Lighting & Power Co., 825 F. Supp. 135, 139 n.2
(S.D. Tex. 1993).
A dual system of rights on an arbitrary ground violates
every equal protection standard known. The Constitution
“neither knows nor tolerates classes among citizens.” Plessy
v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)
(quoted with approval, Romer v. Evans, 116 S. Ct. 1620, 1623
(1996). Surely, if officially ignoring men’s complaints of sex-
ual harassment while taking women’s seriously violates the
sex equality component of the Equal Protection Clause,
Nabozny, 92 F.3d at 456 (school must “give male and female
29
students equivalent levels of protection”); and of Title VII,
Madon v. Laconia School District, 952 F. Supp. 44, 47-48
(D.N.H. 1996) (school ignoring complaint of anal groping of
teacher by principal is sex-based); and of Title IX, Yusef v.
Vassar College, 35 F.3d 709, 715 (2d Cir. 1994), judicially
interpreting Title VII to ignore men’s complaints of sexual
abuse by men, while allowing women’s complaints of sexual
abuse by men, does as well. And this Court taught in Romer
that homosexuals, as such, may not be excluded from the
ordinary civil processes for asserting their rights that are
available to everyone else.
Without question, “[t]he guarantee of equal protection can-
not mean one thing when applied to one individual and
something else when applied to [another] person[.] Bakke,
438 U.S. at 289-290 (Powell, J., with whom White, J.,
joined). But the parallel between this case and the “reverse
discrimination” cases—advanced by the Eleventh Circuit in
Fredette, 112 F.3d at 1509, and adopted in Storey v. Chase
Bankcard Services, 1997 WL 414730, at *6 (D. Ariz., July 21,
1997}—is more formal than substantive. Those who claim
“reverse discrimination” say they are treated the way the his-
torically powerless are treated. However, affirmative action
designed to redress and end arbitrary social exclusion and
white/male supremacy, Swann v. Charlotte-Mecklenburg Bd.
of Ed., 402 U.S. 1 (1971), Johnson v. Transportation Agency,
Santa Clara County, 480 U.S. 616 (1987), does not violate
the legal equality rights of individual members of socially
dominant groups who thereby lose their customary group-
based privileges. But cf Hopwood v. Univ. of Tex., 84 F.3d
720 (Sth Cir.), cert. denied, 116 S. Ct. 2581 (1996). At the
same time, it would be perverse to allow members of domi-
nant groups to use equality laws to reassert their dominance
while denying access to equality relief to individual members
of dominant groups who fail to meet their group’s standard
for dominance and/or are treated like members of historically
powerless groups are so often treated.
Oncale presents a real, not imagined, a direct, not reverse,
act of discrimination based on sex. It cannot be the case that
30
whites, wrongly claiming racism, can destroy equality pro-
grams for people of color while sexually assaulted men,
rightly claiming sexism, cannot sue their victimizers. And far
from undermining the rights of those who most often need the
claim, allowing Oncale to sue under Title VII not only takes
nothing from them but, by reducing the stigma of sexual as-
sault and increasing accountability for it, benefits all sexual
abuse survivors.
Much sexual harassment jurisprudence reasons that, had a
sexually harassed woman been a man, she would not have
been so treated, therefore she is harassed “because of sex.”
The present case poses the question, What if she had been a
man and the same thing happened? The answer is at once sex-
specific and sex-neutral: both sexes are covered for injuries
through their gender. Women do not have sex equality rights
only because men couldn’t be treated in the same way, this
case suggests, but because men could be and are not. And
when they are? Had he been a woman, Mr. Oncale might not
have been treated the way he was. But if he were, his sex
equality rights would be recognized.
CONCLUSION
For the foregoing reasons, the decision of the Court of Ap-
peals for the Fifth Circuit should be reversed and the cause
remanded for trial on the merits.
Respectfully submitted,
Catharine A. MacKinnon
625 S. State St.
Ann Arbor, Michigan 48109-1215
(313) 647-3595
Attorney for Amici Curiae
August 11, 1997
APPENDIX A
educational materials. MSR’s message to men is that the sex-
ual assault of females and males, and an entire continuum of
attitudes and behaviors supporting it, are critical issues for
men to address. MSR is committed to educating men because
it believes that only as young males learn to expect safety for
themselves can they be expected to respect the same rights for
other men and for women.
A-2
In MSR’s discussions of male socialization, many boys and
men, beginning to realize the underlying connection of sexual
assault to power, have identified their own experiences of
having been assaulted, mostly by other males. Through
MSR’s rape-prevention education work in all-male environ-
ments such as prep schools, fraternities, sports teams, juvenile
and adult prisons, and military academies, MSR has found
that there are many male survivors of incest or other sexual
abuse. Some fraternity initiations are sexual assaults, and sex-
ual assault is used as “punishment” in athletic teams and the
military. MSR believes that sexual assault of females will not
end until the sexual assault of males is also addressed. Clearly
defining sexual violence by men against men (and by women
against women) as a practice of sex-based discrimination, as
Oncale seeks to do, would promote this goal.
OAKLAND MEN’S PROJECT, INC. (OMP), was started in
Oakland, California, in 1979 as a community education pro-
gram to stop men’s violence. OMP is a nationally recognized
program dedicated to helping people understand the roots of
violence, and to building alliances across lines of gender,
race, sexual orientation, and age. As a multicultural men’s
nonprofit agency, it conducts community organizing and vio-
lence-prevention education and training for schools and state
and national institutions and organizations. Publications in-
clude Making the Peace (Hunter House, 1997), a violence-
prevention curriculum for young people, now being con-
ducted as a program at urban and rural sites throughout Cali-
fornia and across the United States.
OMP is interested in the outcome of the Oncale case be-
cause of OMP’s commitment to intervene in and prevent
men’s violence, in particular physical and sexual violence
against women and against other men. OMP understands this
violence to be connected to male socialization—the training
of boys and young men to “act like a man.” The clearest effect
of this socialization is the re-creation, generation by genera-
tion, of gender inequality and harassment, discrimination,
domination, and other forms of violence among men. As a
multicultural men’s organization, we have conducted
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violence-prevention trainings for nearly 20 years, currently
reaching 5,000 youth and adults per year; we know from our
trainings, and from our own lives, the profound effects of so-
cialization and resultant forms of sexual and physical harass-
ment. The Oncale case offers a chance for legal recourse for
male victims of sexual abuse from other men, while pointing
out the common sources of the sexual harassment of both
women and men by men.
MEN AGAINST PORNOGRAPHY (MAP), a nonprofit or-
ganization located in New York City and founded in '“ «. de-
velops and distributes educational materials and workshops for
men about how pornography negatively affects their attitudes
and behavior as men. MAP encourages men to become in-
volved in helping to create sex equality. MAP recognizes that
male-against-male violence and male-against-female violence
are closely related phenomena—both in survivors’ experience
of subordination and aggressors’ gendered motivation to domi-
nate. In the Oncale case, MAP seeks to further the legal recog-
nition that violence of men against men, like violence of men
against women, is a product of a social system of gender hier-
archy in which men dominate others who are less powerful.
SEXUAL EXPLOITATION EDUCATION PROJECT, INC.
(SEEP), is a nonprofit organization in Portland, Oregon,
whose primary purpose is to provide community education
about sexual exploitation and, specifically, men’s account-
ability in stopping it.
Sexual harassment, like other kinds of sexual exploitation, is
predominately a form of men’s violence against women. It is
discrimination based on sex and it is about the societal power
men have over women. Men sexually harass women in order to
prove their manhood to themselves and their peers. This type of
male sexual identity is based on dominance; the gender of the
recipient of the abuse doesn’t change that. Oncale v. Sun-
downer brings to our attention as a nation the reality that men
sexually subordinate other men as well as women. Many times,
in fact, SEEP has found that the all-male peer group is a train-
ing ground for men. It’s where males learn, by assaultive and
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sexualized humiliations of each other, how to treat women in a
world where to not be a real man is to be less than nobody.
SEEP provides educational presentations to over 4,000
middle and high school students each year in the Portland area
“concerning sexual harassment, date rape, dating violence, and
prostitution/pornography. From experience doing this vio-
lence-prevention work with young people, SEEP sees again
ar ' again how men’s sexual subordination of men is funda-
mentally connected to men’s sexual subordination of women.
It is SEEP’s position that the law should protect all recipients
of sexual harassment, regardless of gender. If it does not, if
we tacitly condone male-on-male sexual harassment by not
affording men the equal protection of the law, we will never
be able to eliminate men’s violence against each other and
subsequently against women.
MEN OVERCOMING SEXUAL ASSAULT (MOSA) is a
project of BAY AREA WOMEN AGAINST RAPE, INC.
(BAWAR). The nation’s first rape-crisis center (incorporated in
1971), BAWAR is a private, nonprofit organization whose mis-
sion is to empower, support, intervene on behalf of, and advo-
cate for sexual assault survivors and their significant others.
Current statistics show that one in ten men will be sexually
assaulted as adults. For many survivors, isolation and shame
make seeking help difficult; for male survivors this withdrawal
may be heightened by the perception that rape-crisis counseling
is available only for women and by the misperception that only
gay or bisexual men are assaulted. BAWAR began the MOSA
project to provide male survivors of sexual assault with a sup-
portive context for dealing with the issues they face, regardless
of sexual orientation. As part of BAWAR’s commitment,
through MOSA, to assist survivors of male-on-male assault,
BAWAR has an interest in the legal recognition of male-on-
male sexual harassment as a civil-rights violation.
STOP PRISONER RAPE, INC. (SPR), is a national nonprofit
organization dedicated to combating the rape of male and fe-
male prisoners and to helping survivors of jailhouse rape.
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It is estimated that 80,000 unwanted sexual acts take place
behind bars in the United States every day, with a total of
364,000 prisoners raped every year. Most male victims are
young, small, nonviolent, unable to defend themselves against
ruthless exploitation. Full of rage and lacking psychological
treatment for Rape Trauma Syndrome, they typically return to
the community far more violent and antisocial than before
they were raped, and some become rapists themselves in a
it. sguided attempt to “regain their manhood.”
The purposes of SPR are to provide education, information,
and advocacy at all levels with regard to this ongoing night-
mare of sexual assault and enslavement; to provide encour-
agement, advice, counseling, and legal support to survivors;
to train the staff who must deal with them; and to combat this
systematic and cyclic horror in every way possible.
SPR is interested in the Oncale case because SPR is opposed
to male-on-male sexual assault no matter where it takes place.
MEN OVERCOMING VIOLENCE, INC. (MOVE), a non-
profit organization in San Francisco, California, works to end
male relationship violence, challenges attitudes and beliefs
that perpetuate that violence, and promotes a cooperative,
nonabusive model of masculinity. To accomplish this, MOVE
provides counseling for adult and adolescent batterers, re-
education, professional training, community education, and
advocacy for change in public policy.
Since 1980, MOVE has called on Bay Area men to take
responsibility for, and to cease, their violent behavior. The
main principle governing MOVE’s work is that most men’s
abusive behavior is learned, and is not the result of inherent
traits or psychological disorders.
Through its work, MOVE has come to understand men’s
relationship violence as involving destructive patterns of
power, domination, and control. In joining the Oncale case,
MOVE seeks to further the recognition and elimination of
pernicious societal patterns that reward male power and con-
trol over others who are perceived as less powerful.
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COMMUNITY UNITED AGAINST VIOLENCE, INC.
(CUAV), is a community-based organization dedicated to
creating an environment free of violence and oppression for
the lesbian, gay, bisexual, and transgender communities of
San Francisco. Toward that end, CUAV develops programs
and services to empower and protect these communities’ dig-
nity, identity, and individual rights and to promote their safety
and self-determination.
Founded in 1979, CUAV offers a range of programs for
survivors of hate and domestic violence, including a crisis
line; counseling; referrals; advocacy in the justice, medical,
and mental-health systems and with other service providers.
CUAV also provides extensive educational programs and
trainings on homophobia, violence, personal safety aware-
ness, and self-defense.
CUAV understands violence to be a manifestation of ha-
tred, bigotry, ignorance, and fear. As part of its educational
and outreach work, CUAV collects, analyzes, and dissemi-
nates statistics and other information about homophobic hate
violence and same-sex partner violence in order to advocate to
effect positive legal protection and civil rights. It also pro-
vides legal services to survivors of hate crimes, harassment,
and domestic violence.
CUAV joins this amicus brief in support of Joseph Oncale
out of the long-standing conviction underlying its activities that
hateful aggression against individuals on account of their sex or
sexual orientation cannot be excused or exonerated on any
ground and that justice and empowerment require that survivors
have access to civil amelioration against perpetrators without
regard to the sex or sexual orientation of either person.
EMERGE: A MEN’S COUNSELING SERVICE ON DO-
MESTIC VIOLENCE, INC., founded in 1977 in Boston, is the
nation’s first counseling program for men who batter and the
largest such program in New England. Emerge is committed to
helping men to confront and take responsibility for their abu-
sive behavior. Emerge has learned from many experts on do-
mestic violence and sexual assault that the psychological and
~ es
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economic impact of such treatment is usually devastating and
long-lasting, regardless of the gender of the victims.
Recognizing that the usual targets of abusive behavior are
women, Emerge believes that neither gender should be sub-
jected to physical assault, sexual and verbal degradation, and
terroristic behavior such as occurred in the Oncale v. Sun-
downer case. Such egregious behavior in a work setting is no
less terrifying and humiliating to men than it is to women.
These injuries can be prevented, Emerge believes, only if
companies are held accountable for tolerating gender-based
violence and harassment against their employees.
MEN STOPPING VIOLENCE, INC. (MSV), founded in 1982
in Atlanta, Georgia, is a nonprofit organization dedicated to
ending violence against women. Its focus is to stop battering,
and its intention is to work toward ending rape and incest.
As MSV works to help men change their abusive behavior,
MSV recognizes that individual change is dependent upon
changing social systems that support the private and institu-
tional oppression of women. MSV believes that groups of
men can work together to change patriarchal values and belief
systems that oppress women and children and dehumanize
men themselves. In this struggle, MSV looks to, and supports
the work of, the battered-women’s movement. Believing that
all forms of oppression reinforce one another, MSV also seeks
to confront power hierarchies that are based on race, class, or
sexual orientation.
MSV believes that men’s violence against women has its
roots in men’s contempt for women, which is both learned
and expressed through verbal insults—such as “sissy,”
“pussy,” “miaiia’s boy,” “henpecked,” “throws like a girl”—
by which men classify other men as women, hence sexual or
gender inferiors. The work to end men’s violence against
women is strengthened by acknowledging the connection
between men’s contempt for women and men’s assaults on
men—a connection that allowing Joseph Oncale to sue for
sexual harassment would clearly promote.
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MEN’S RAPE PREVENTION PROJECT, INC. (MRPP), a
nonprofit educational organization in Washington, D.C..
works to prevent rape and other forms of male violence
through community education, consulting, research, and pub-
lic action. MRPP supports men by providing them with the
resources and opportunities to challenge themselves and oth-
ers to end sexual violence. MRPP urges men to recognize
their collective capacity to prevent sexual violence in order to
join with women in building a rape-free society.
MRPP recognizes that there are complex relationships be-
tween sexist violence and other often violent forms of oppres-
sion, such as racism and homophobia. By confronting these
institutions—and by supporting legal means of holding men
accountable for their sexual violence against other men as
well as against women, as the Oncale case would do—MRPP
believes men will make a dramatic statement about their
commitment to living peacefully in a world based on equality
and free choice rather than privilege and coercion.
NEW YORK CITY GAY & LESBIAN ANTI-VIOLENCE
PROJECT, INC. (AVP), a crime-victim-assistance agency
founded in 1980, is the only organization in New York that
specifically serves lesbian, gay, bisexual, and transgender
survivors of sexual assault, domestic violence, hate crimes,
and other forms of criminal victimization. In addition to
documenting these crimes, AVP provides a twenty-four-hour
crisis-intervention hotline; peer and group counseling; ac-
companiment to and advocacy with police, the courts, and
other service providers; information and referrals. AVP serves
the larger community by working to change public attitudes
that tolerate, insulate, or instigate hate-motivated crime, and
to reform government policies and practices affecting lesbian,
gay, and other survivors of crime.
AVP recognizes that rape and sexual assault can happen to
anyone,-including men, regardless of their race, class, age,
size, appearance, or sexual orientation. AVP considers sexual
assault to occur any time either a stranger or someone known
touches any parts of a person’s body in a sexual way, directly
or through clothing, when that person does not want it. And
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AVP considers rape to be any kind of sexual assault that in-
volves the forced penetration of the anus or mouth, even par-
tially, by a penis or other object. AVP believes that rape and
sexual assault, like any other forms of violence, are used to
exert power and control over another person and should be
legally actionable by victims asserting their civil rights.
NATIONAL COALITION AGAINST SEXUAL ASSAULT,
INC. (NCASA), is a nonprofit membership organization
founded in 1978. NCASA’s members include over 500 rape-
crisis centers, sexual-assault-prevention programs, women’s
centers, individuals, and allied organizations. In recent years
workshops at conferences have included topics on serving
male survivors and the involvement of men in the anti-sexual-
violence movement.
NCASA is a feminist organization that provides leadership
to the movement to end sexual violence through advocacy,
education, and public policy. NCASA’s vision is to eliminate
sexual assault and all forms of oppression. NCASA works to
attain qualified services for victims/survivors and challenges
the nation to commit to a rape-free culture.
NCASA holds an annual conference that addresses treat-
ment, research, awareness, and program development. It pub-
lishes NCASA News, fact sheets, and public-policy updates.
The information it circulates is based on survivor reports, ex-
pert literature, and NCASA oversight of the legal system.
NCASA provides current, accurate, and comprehensive in-
formation to victim-service providers, public-policy makers,
media, members, and the public.
NCASA’s work to end sexual violence includes all forms
of sexual violence, including against women, children, and
men. Therefore, NCASA has a high interest in ensuring that
legal prohibitions against sexual violence and sexual harass-
ment apply to all victims/survivors, regardless of their gender
or other characteristics.
APPENDIX B
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Appendix B
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
No. 92-8533
RICHARD A. GIDDENS, ET AL..,
Plaintiffs,
RICHARD A. GIDDENS,
Plaintiff-Appellant,
Cross-Appellee,
versus
SHELL OIL COMPANY,
Defendant-Appellee,
Cross-Appellant,
and
JACK TUCCI,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Texas
(M-91-CV-98)
Before REAVLEY, DAVIS, Circuit Judges, and TRIMBLE, '
PER CURIAM?
' District Judge of the Western District of Louisiana, sitting by designa-
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Our review of the record and the relevant law in this case
persuades us that the district court correctly entered a take-
Giddens failed to state a claim for relief under Title VII.
Harassment by a male supervisor against a male subordinate
does not state a claim under Title VII even though the har-
assment has sexual overtones. Title VII addresses gender dis-
him differently because he was a male and he produced no
evidence at trial tending to prove such facts. The district
court, therefore, correctly dismissed Giddens’ Title VII ac-
tion.
Giddens’ action for negligent infliction of emotional dis-
tress and negligent hiring and supervision are barred by the
Texas Workers’ Compensation Act.
Giddens’ claim for intentional infliction of emotional dis-
tress against Shell is precluded by the jury’s finding that
Tucci’s acts were not committed in the course and scope of
his employment.
We need not consider Giddens’ claim for intentional inflic-
tion of emotional distress against Tucci, because Giddens has
not complained about the district court’s dismissal of his ac-
tion against Tucci.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED.
burdens on the legal profession.” Pursuant to that Rule, the Court has de-
termined that this opinion should not be published.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.