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

Authors

Kyle F. Mothershead

First Page

1205

Abstract

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.' 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, 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. The 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.

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, and expanded standing 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.

Recommended Citation

Kyle F. Mothershead, How the "Equal Opportunity" Sexual Harasser Discriminates on the Basis of Gender Under Title VII, 55 Vanderbilt Law Review 1205 (2002)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss4/3