Academic journal article Vanderbilt Law Review

How the "Equal Opportunity" Sexual Harasser Discriminates on the Basis of Gender under Title VII

Academic journal article Vanderbilt Law Review

How the "Equal Opportunity" Sexual Harasser Discriminates on the Basis of Gender under Title VII

Article excerpt


Americans commonly know that federal law prohibits workplace sexual harassment. Many might be surprised to find, however, that generally courts have not found liability in the case of the so-called "equal opportunity" harasser.1 A simple hypothetical will explain the nature of this peculiar species of harasser. Suppose Ken and Carol are both employed at Happyfun, Inc. as manufacturers of reindeer Christmas ornaments under the direction of their supervisor, Fred. Fred corners each of them daily and asks, "How about some sex today?" No doubt he is sexually harassing both Ken and Carol. If they sue for relief, however, a judge would very likely tell them that because Fred harasses both a man and a woman there is no sex "discrimination" and, therefore, Title VII does not provide a remedy for their grievances.

In 2000, the Seventh Circuit squarely addressed and upheld this doctrine in Holman v. Indiana,2 a case that has received considerable attention in academic literature and case reviews for its stark denial of relief to victims of equal opportunity harassment.3 The IMAGE FORMULA5

responses to Holman are divergent, and those who oppose the result have taken a variety of tacks in arguing against the court's decision. The larger issue Holman raises has a much longer history than the case itself, and has been a matter of academic debate since the 1970s.(4)

Surely, most judges would not particularly want to deny relief to victims of equal opportunity harassment. But, while the Supreme Court has never held that Title VII does not prohibit equal opportunity harassment, lower courts generally have not found a proper theory of discrimination on which to base liability for equal opportunity harassment. This Note provides such a theory. The theory uses disparate treatment, disparate impact,5 and expanded standing IMAGE FORMULA7

concepts to provide a framework for finding sex discrimination in the full range of equal opportunity harassment cases and eliminate the equal opportunity exception from Title VII jurisprudence.

Unlike some previously proposed theories, which seek to fundamentally alter sexual harassment analysis from the traditional method of analyzing the comparative burdens experienced by male and female employees to an entirely different method of analysis that is more easily conducive to providing full protection from sexual harassment, this Note seeks only to stretch the existing framework in order to show that it already has the capacity to prohibit equal opportunity harassment. This Note suggests that by analyzing equal opportunity harassment through the lens of disparate impact and by tightly and concretely analyzing the impacts that harassment victims suffer, courts will tend to find that equal opportunity harassment can result in qualitatively different disparate burdens on both male and female victims. In other words, equal opportunity harassment can harm men in ways that it does not harm women and women in ways that it does not harm men. Thus, it exposes each to "disadvantageous terms or conditions of employment to which the other gender is not exposed."6

This Note proceeds to outline this theory in five parts. Part I has sought to explain the issue and to imply its attendant problems. Part II will provide a basic case history of both hostile environment sexual harassment and the equal opportunity harassment exception and will begin to highlight how these cases can allow for closing the exception. Part III will discuss previous scholarly arguments regarding the appropriateness of and potential for closing the exception. Finally, Part IV outlines a new disparate impact theory for prohibiting equal opportunity sexual harassment. IMAGE FORMULA9


A. History of Hostile Environment Sexual Harassment as Title VII Sex Discrimination

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