"EQUAL OPPORTUNITY" HARASSERS: Does A Sex Harasser Who Targets Both Men And Women Violate Federal Anti-discrimination Law?

Connecticut fire chief Marcuam Johnson may be the man academics like to hypothesize about, a true equal-opportunity harasser — in that he is alleged to have harassed both men and women in equally sexual, and equally offensive, ways.

According to complaints from a male deputy, Johnson grabs men by their testicles, gooses them, and puts his hands in their front pockets so he can simulate having anal sex with them. According to complaints from a female secretary, he whacks her on the buttocks and makes comments about the size of her breasts.

Both the male deputy and the female secretary have filed lawsuits against the Torrington, Connecticut fire department, alleging that Johnson's conduct created a sexually hostile working environment in violation of Title VII, the federal anti-discrimination statute. Both contend, as they must, that they were harassed because of their sex.

But can it really be the case that both the man and the woman were harassed because of their sex, as Title VII requires? Might it be more accurate to say that if all the allegations against him are true, Johnson harasses regardless of sex, not because of it?

Or, put another way, is Johnson's alleged harassment so indiscriminate that while it may constitute a tort, it does not constitute unlawful discrimination in violation of federal civil rights laws?

When plaintiffs seek to challenge workplace harassment that occurs "because of" a prohibited characteristic — such as race, religion, ethnicity, or, of course, sex — one theory they can invoke is that of a hostile work environment. If such an environment is proven, then, as a matter of law, Title VII's proscription on intentional discrimination has been violated. The result may be to subject the employer to damages.

To succeed in proving a hostile environment claim, a plaintiff alleging sexual harassment must show unwelcome conduct of a sexual nature that was severe or pervasive, and that had the effect of creating an objectively and subjectively hostile, offensive, or abusive working environment. He or she must also prove that the harassment was undertaken because of his or her sex.

Why the "because of sex" requirement? Because Title VII only prohibits sexually abusive conduct when it is discriminatory–that is, done to a woman because she is a woman, or to a man because he is a man.

Title VII's "because of sex" requirement, however, has turned out to be more difficult to interpret than courts initially believed. For instance, the reasoning that says sex harassment comes from opposite-sex desire, and is thus "because of sex" breaks down when the harassing supervisor is bisexual. If a bisexual supervisor gropes a female subordinate, he or she may well do the same thing to a male subordinate, thus undermining the woman victim's claim that she was harassed because of her sex.

This scenario, perhaps discussed more by law professors than courts, has been viewed as an unfortunate, but statutorily required, exception to Title VII. No one harassed by a bisexual supervisor could claim discrimination — so the thinking goes — because male and female victims, while both being demeaned, were being treated equally.

The sexual desire presumption also breaks down when it turns out that harassment is the product of other motivations: the desire to reinforce sex roles, to drive women out of men's jobs, or to exert power over subordinates.

In those cases, too, plaintiffs must prove that the harassment occurs because of sex. That leads to another problem: that of the equal opportunity harasser. He is different from the bisexual harasser in that he is not motivated by sexual attraction to harass both men and women. But he is the same as the bisexual harasser in that he directs his harassing conduct at both men and women. Chief Johnson, if the allegations against him are true, is one of these men.

The long and hard-fought battle to bring same-sex harassment within the ambit of Title VII was what focused emphasis on the statutory requirement that harassment be "because of sex" in order for suit to be brought.

In 1998, the Supreme Court finally ruled on the issue of same-sex harassment, in the case of Oncale v. Sundowner Offshore Services. There, the Court held that Title VII did not categorically exclude same-sex harassment from its coverage. However, the Court emphasized the need to prove that same-sex harassment occurred because of sex.

In an amicus (friend-of-the-court) brief filed in Oncale, a group of public interest organizations proposed a theory to make equal opportunity harassment actionable under Title VII.

"Equal opportunity" harassment, they argued, is because of sex because sexual acts are inherently related to the sex of the person subjected to them. Gender affects not only the nature of the sexual acts of harassment (grabbing breasts versus grabbing testicles), but also how the victim will experience the harassment.

If this approach were adopted by the courts, it would be consistent with the courts' prior treatment of sex-based and race-based harassment. Suppose, for example, that a supervisor uses sex-based stereotypes and slurs against both female employees (e.g., "women are not scientific enough to be doctors") and male employees (e.g., "men are too unemotional to be nurses").

A woman doctor and a male nurse could both sue based on the supervisor's slurs, even though he is an "equal opportunity" stereotyper, because each is harassed because of sex. Along the same lines, surely an African-American employee who is the victim of a racial slur would not lose out because the perpetrator directed a different racial slur toward an Asian-American employee. "Equal opportunity" racial discrimination is seen for what it is: racial discrimination.

Unfortunately, the public interest organizations' theory that all sexual conduct is because of sex did not persuade the Supreme Court in Oncale. And since Oncale, only a few courts have revisited the question of the equal opportunity harasser.

The Seventh Circuit is one of those courts. In a recent decision, that court refused to allow a married couple to go forward with allegations that the same male supervisor had sexually harassed both of them, by soliciting sex from each.

Although the Second Circuit, in which the cases against Chief Johnson have been brought, has not expressly ruled on the viability of a claim against an "equal opportunity" harasser, a federal district court in Connecticut has followed the Seventh Circuit's decision. And given the weight of authority excusing such harassment, the likelihood that such a claim will succeed seems, unfortunately, to be slight.