Wrightson v. Pizza Hut ( 1996 )

Filed: November 15, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-1127
(CA-95-332-3-MU)
Arthur Wrightson,
Plaintiff - Appellant,
versus
Pizza Hut of America, Inc.,
Defendant - Appellee.
O R D E R
The Court amends its opinion filed October 31, 1996, as
follows:
On page 3, first full paragraph, line 5 -- the period after
the closing parenthesis is deleted.
On page 3, second full paragraph, line 2 -- the comma after
"Wrightson" is deleted.
On page 6, footnote 1, line 20 -- the text is changed to read:
"a dissent in McWilliams v. Fairfax County Board of Supervisors, 72
F.3d 1191 (4th Cir. 1996), cert. denied, ___ S. Ct. ___, 1996 WL
324733 (1996)."
- 2 -
On page 6, footnote 1, line 25 -- the text is corrected to
read "under Title VII. See Garcia, 28 F.3d at 451-452, and ...."
On page 8, footnote 2, line 6 -- the text is changed to read
"the Justices in Price Waterhouse was over which party ...."
On page 12, third full paragraph, line 4 -- the citation to
Harris is corrected to read "510 U.S. 17, 21 (1993)."
On page 13, first paragraph, lines 1-2 -- the citation to
McDonald is corrected to read "427 U.S. 273, 279-80 (1976)."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ARTHUR WRIGHTSON,
Plaintiff-Appellant,
v. No. 96-1127
PIZZA HUT OF AMERICA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-95-332-3-MU)
Argued: September 23, 1996
Decided: October 31, 1996
Before MURNAGHAN and LUTTIG, Circuit Judges, and
HALLANAN, United States District Judge for the Southern District
of West Virginia, sitting by designation.
_________________________________________________________________
Reversed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Judge Hallanan joined. Judge Murnaghan wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: George Bryan Adams, III, WAGGONER, HAMRICK,
HASTY, MONTEITH & KRATT, P.L.L.C., Charlotte, North Caro-
lina, for Appellant. Edward Laughtin Eatman, Jr., Paul Christopher
Lawrence, HEDRICK, EATMAN, GARDNER & KINCHELOE,
L.L.P., Charlotte, North Carolina, for Appellee. ON BRIEF: William
Howard Elam, WISHART, NORRIS, HENNINGER & PITTMAN,
Charlotte, North Carolina; June K. Allison, WISHART, NORRIS,
HENNINGER & PITTMAN, Burlington, North Carolina, for Appel-
lant.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Plaintiff-appellant Arthur Wrightson, formerly an employee of
defendant-appellee Pizza Hut of America, Inc., appeals the dismissal
under Federal Rule of Civil Procedure 12(b)(6) of his Title VII claim
against Pizza Hut. Wrightson, a heterosexual male, alleges that his
homosexual male supervisor and other homosexual male employees
at Pizza Hut subjected him to a "hostile work environment" in viola-
tion of Title VII. The district court dismissed Wrightson's claim,
holding that same-sex sexual harassment is not actionable under Title
VII. For the reasons that follow, we reverse.
I.
Because Wrightson challenges the district court's dismissal of his
complaint under Federal Rule of Civil Procedure 12(b)(6), we accept
as true for purposes of this appeal the facts as alleged in his complaint
and attached affidavits. Martin Marietta v. Intern. Tel. Satellite, 991
F.2d 94, 97 (4th Cir. 1992).
Wrightson, a heterosexual male, was sixteen years old when, from
March of 1993 until March of 1994, he was employed as a cook and
waiter at Pizza Hut store number 618041, located at 8800 Pineville-
Matthews Road, Charlotte, North Carolina. During that time, Bobby
Howard, an openly homosexual male, J.A. at 8-10, 48, 56, 60, was
Wrightson's immediate supervisor. Wrightson's co-workers included
five openly homosexual males -- Leonard Wilson, Brandon Johnson,
David Jackson, Shane Campbell, and Billy (last name unknown). J.A.
at 8-10, 48, 51, 56, 60. Three of Wrightson's co-workers were hetero-
sexual males -- Michelangelo Macri, Brad Wentzel, and Aaron
George Sim. J.A. at 48-62.
2
In November or December of 1993, Howard and the other homo-
sexual male employees began sexually harassing Wrightson and the
other heterosexual male employees. (Wrightson does not allege that
the homosexual employees harassed either female employees or
homosexual male employees.) After Pizza Hut hired a male
employee, the homosexual employees attempted to learn whether the
new employee was homosexual or heterosexual. J.A. at 53. If the
employee was heterosexual, then the homosexual employees began to
pressure the employee into engaging in homosexual sex. J.A. at 53.
The harassment continued during working hours "on a daily basis,"
J.A. at 8, for seven months, in the presence of and within the knowl-
edge of upper management. Indeed, the harassment continued even
after Wrightson complained to management.
The harassment of Wrightson took the form of sexual advances, in
which Howard graphically described homosexual sex to Wrightson
in an effort to pressure Wrightson into engaging in homosexual sex.
J.A. at 8, 49. As alleged in the complaint,
during working hours [Howard] made numerous comments
to [Wrightson] of a graphic and explicit nature wherein
Howard . . . would graphically describe his homosexual life-
style and homosexual sex, would make sexual advances
towards [Wrightson], would subject [Wrightson] to vulgar
homosexual sexual remarks, innuendos and suggestions, and
would otherwise embarrass and humiliate [Wrightson] by
questioning [him] as to why he did not wish to engage in
homosexual activity and would encourage and invite
[Wrightson] to engage in such homosexual activity.
J.A. at 8. In addition, Howard repeatedly touched Wrightson in sexu-
ally provocative ways. On several occasions, for example, Howard
ran his hands through Wrightson's hair, massaged Wrightson's shoul-
ders, purposely rubbed his genital area against Wrightson's buttocks
while walking past him, squeezed Wrightson's buttocks, and pulled
out Wrightson's pants in order to look down into them. J.A. at 9, 12.
While touching Wrightson, Howard made sexually explicit com-
ments, described homosexual sex, and invited Wrightson to engage in
homosexual sex. Id.3
Macri, Wentzel, and Sim were similarly pressured by Howard to
engage in homosexual sex. Howard physically touched, and made
sexual comments to, all three employees, explicitly describing homo-
sexual sex to them and inviting them to engage in homosexual sex.
J.A. at 49, 50, 57, 60, 61. For example, on one occasion, Howard sug-
gested to Macri and Wrightson that they should try what Howard cal-
led the "golden enema," referring to anal sex. J.A. at 51. On another
occasion, Howard attempted to kiss Macri as Macri left the Pizza Hut.
J.A. at 50. As with Wrightson, Howard massaged these employees'
shoulders and rubbed his genital area against their buttocks while
making sexually explicit comments to them. J.A. at 50, 60.
Although Howard's conduct was the most egregious, J.A. at 49, 57,
60, the other homosexual employees engaged in a similar pattern of
harassment of Wrightson, J.A. at 9-10, and his heterosexual co-
workers. For example, Jackson once described to the heterosexual
males how he wanted to have his teeth removed in order to give better
oral sex. J.A. at 51. On another occasion, Wilson called Wentzel at
Wentzel's home and asked him on a date, even though Wilson was
aware that Wentzel was heterosexual. J.A. at 58. Wilson also told
Macri that he thought Wrightson was "cute," and joked that Wright-
son was able to get work-breaks because he performed oral sex. J.A.
at 52.
Wrightson and the other heterosexual males made it absolutely
clear to Howard and the homosexual employees that the harassment
was unwelcome. Wrightson, for example, specifically told Howard
and the others to stop the harassment on numerous occasions. J.A. at
10-16, 55. Macri told the homosexual males that if they did not stop,
he would file a complaint against them. J.A. at 52. Wentzel told the
homosexual employees to "shut up" each time they directed a sexual
comment toward him. J.A. at 58. Sim also repeatedly complained to
Howard about the harassment. J.A. at 61. Notwithstanding these pro-
tests, the harassment continued.
The manager of the Pizza Hut, Jennifer Tyson, and the assistant
manager, Romeo Acker, were aware of the harassment and of the het-
erosexual males' objections to it. According to the complaint,
"[Wrightson] . . . and his mother, Cathy Celentano, complained on
numerous occasions to [Wrightson's] immediate supervisors, store
4
managers of the subject Pizza Hut and other supervisors and manag-
ers of [Pizza Hut] about the verbal and physical sexual harassment
which was being directed at [Wrightson] by [Pizza Hut's] employ-
ees." J.A. at 10-11. Tyson and Acker even personally witnessed the
harassment on several occasions. J.A. at 61. Neither Tyson nor Acker,
however, took any disciplinary action against Howard or the others.
J.A. at 12-14, 54, 59, 61-62. After one incident, Wrightson's mother
complained directly to Acker and Tyson about the harassment. J.A.
at 12. Tyson admitted to Wrightson's mother that she was aware of
the harassment and also that Howard's actions constituted sexual
harassment, but she contended that she was unable to control Howard.
J.A. at 13. At one point, Tyson even called a meeting at which she
ordered the homosexual employees to stop harassing Wrightson and
the others, and advised them that their conduct violated federal law.
J.A. at 13. After this meeting, the homosexual employees joked about
the possibility of a federal sexual harassment suit, J.A. at 13-14, and
the harassment continued and "intensified," J.A. at 11-12, 14. Tyson
and Acker took no formal action against Howard or the other homo-
sexuals at any time. J.A. at 13-14, 54, 59, 61-62.
On August 15, 1995, Wrightson filed this action against Pizza Hut
in the United States District Court for the Western District of North
Carolina, Charlotte Division, alleging that he had been sexually dis-
criminated against, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et seq. Specifically, Wrightson alleged that,
because of the actions of Howard and the other homosexual employ-
ees, he had been subjected to a "hostile work environment" in viola-
tion of Title VII, as interpreted by the Supreme Court in Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986).
Relying on the Fifth Circuit's holding in Garcia v. Elf Atochem
North America, 28 F.3d 446, 451-52 (5th Cir. 1994), that "harassment
by a male supervisor against a male subordinate does not state a claim
under Title VII even though the harassment has sexual overtones," the
district court held that no Title VII cause of action lies where the per-
petrator of the sexual harassment and the target of the harassment are
of the same sex. The district court therefore dismissed Wrightson's
complaint under Federal Rule of Civil Procedure 12(b)(6).
5
II.
A.
Wrightson contends on appeal that the district court erred in dis-
missing his claim because a claim of same-sex sexual harassment
under Title VII may lie where the perpetrator of the sexual harass-
ment is homosexual.1
We first addressed the issue of same-sex sexual harassment only
recently in McWilliams v. Fairfax County Board of Supervisors, 72
F.3d 1191 (4th Cir. 1996), cert. denied, ___ S. Ct. ___, 1996 WL
324733 (1996). There, we held that no Title VII cause of action for
_________________________________________________________________
1 Although no circuit has squarely addressed this issue, several circuits
have suggested that a same-sex sexual harassment claim under Title VII
may lie in at least some circumstances. See Quick v. Donaldson Co., 90
F.3d 1372 (8th Cir. 1996) (denying summary judgment in hostile work
environment suit where male employee claimed harassment by male co-
workers); Barnes v. Costle, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977)
("[T]he legal problem would be identical to that confronting us now" if
a "subordinate of either gender [was sexually harassed] by a homosexual
superior of the same gender."); Bundy v. Jackson, 641 F.2d 934, 942 n.7
(D.C. Cir. 1981); McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir.
1996) (noting that "a difference in sex is not a necessary condition of
sexual activity and hence (most courts think) of sexual harassment.");
Baskerville v. Culligan Int'l. Co., 50 F.3d 428, 430 (7th Cir. 1995)
("[W]e do not mean to exclude the possibility that sexual harassment of
. . . men by other men, or women by other women would not also be
actionable in appropriate cases."); Steiner v. Showboat Operating Co., 25
F.3d 1459, 1464 (9th Cir. 1994) ("[W]e do not rule out the possibility
that both men and women working [for the defendant] have viable claims
against [a male supervisor] for sexual harassment."), cert. denied, 115 S.
Ct. 733 (1995). Recently, in a dissent in McWilliams v. Fairfax
County Board of Supervisors, 72 F.3d 1191 (4th Cir. 1996), cert.
denied, ___ S. Ct. ___, 1996 WL 324733 (1996), and in a separate
concurrence in Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745,
752 (4th Cir. 1996), our colleagues Judges Michael and Niemeyer,
respectively, similarly interpreted Title VII. The Fifth Circuit, in con-
trast, has held in two cases that same-sex sexual harassment claims are
not cognizable under Title VII. See Garcia, 28 F.3d at 451-452 and
Oncale v. Sundowner Offshore Services, Inc., 83 F.3d 118, 119-20 (5th
Cir. 1996). In neither of these cases was there an allegation that either
the harasser or the victim of the harassment was homosexual.
6
"hostile work environment" sexual harassment lies when both the per-
petrator and target of the harassment are heterosexuals of the same
sex. Id. at 1195. In McWilliams, however, we expressly reserved the
question of whether Title VII prohibits same-sex "hostile work envi-
ronment" harassment where the perpetrator of the harassment is
homosexual. Id. at 1195 n.4. Today, we squarely address this issue,
and hold that a claim under Title VII for same-sex "hostile work envi-
ronment" harassment may lie where the perpetrator of the sexual
harassment is homosexual.
Title VII provides in relevant part that,
[i]t shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge . . . or
otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex .. . .
42 U.S.C. § 2000e-2(a)(1). The "work environment" constitutes a
"term[ ], condition[ ], or privilege[ ] of employment." Meritor Savings
Bank, 477 U.S. at 64-67. Therefore, "a cause of action [exists] under
Title VII for persons forced to work in an environment where sexual
harassment has created a hostile or abusive atmosphere." Swentek v.
USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987); see also Meritor Sav-
ings Bank, 477 U.S. at 73. In order to prevail on a "hostile work envi-
ronment" sexual harassment claim, an employee must prove: (1) that
he was harassed "because of" his "sex"; (2) that the harassment was
unwelcome; (3) that the harassment was sufficiently severe or perva-
sive to create an abusive working environment; and (4) that some
basis exists for imputing liability to the employer. McWilliams, 72
F.3d at 1195; Swentek, 830 F.2d at 557. The district court below inter-
preted Title VII to require also that the perpetrator of the "hostile
work environment" sexual harassment be of a different sex than the
target of the harassment in order for the harassment to be cognizable
under Title VII. We discern no such requirement in the statute.
Title VII broadly prohibits "employers" (whether male or female)
from discriminating against "individual" employees (whether they be
male or female) on the basis of the latter's "sex," or gender. Through
its proscription of "employer" discrimination against "individual"
7
employees, the statute obviously places no gender limitation whatso-
ever on the perpetrator or the target of the harassment. Therefore, the
only possible source of a condition that the harasser and victim be of
different sexes is Title VII's causal requirement that the discrimina-
tion be "because of" the employee's sex. In this causal requirement
we find no such limitation either.
An employee is harassed or otherwise discriminated against "be-
cause of" his or her sex if, "but-for" the employee's sex, he or she
would not have been the victim of the discrimination. See Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989); Fuller v. Phipps, 67
F.3d 1137, 1144 (4th Cir. 1995).2 As a matter both of textual interpre-
tation and simple logic,3 an employer of either sex can discriminate
against his or her employees of the same sex because of their sex, just
as he or she may discriminate against employees of the opposite sex
because of their sex. That is, a male employer who discriminates only
against his male employees and not against his female employees, and
a female employer who discriminates against her female employees
and not against her male employees, may be discriminating against
his or her employees "because of" the employees' sex, no less so than
may be the employer (male or female) who discriminates only against
his or her employees of the opposite sex. In all four instances, it is
possible that the employees would not have been victims of the
employer's discrimination were it not for their sex. There is, in other
words, simply no "logical connection" between Title VII's require-
_________________________________________________________________
2 It is plain from the several opinions in Price Waterhouse that all nine
Justices agreed that "but-for" causation is the appropriate standard under
Title VII. See Price Waterhouse, 490 U.S. at 242 (plurality opinion),
259-60 (White, concurring in the judgment), 262 (O'Connor, concurring
in the judgment), 282 (Kennedy, dissenting). The disagreement among
the Justices in Price Waterhouse was over which party should bear the
burden of proving "but-for" causation and at which stage of the
litigation. See id. at 244-45, 259-260, 279, 295.
3 As the Supreme Court noted in Meritor Savings Bank, "[t]he prohibi-
tion against discrimination based on sex was added to Title VII at the last
minute on the floor of the House of Representatives . . . . [T]he bill
quickly passed . . . and we are left with little legislative history to guide
us in interpreting the Act's prohibition against discrimination based on
`sex.'" 477 U.S. at 63-64.
8
ment that the discrimination be "because of" the employee's sex and
a requirement that a harasser and victim be of different sexes. Cf.
O'Connor v. Consolidated Coin Caterers Corp. , 116 S. Ct. 1307,
1310 (1996).
Although the EEOC's interpretation of Title VII is not binding
upon us, the Commission has long so interpreted this antidiscrimina-
tion provision. The EEOC compliance manual specifically states:
The victim does not have to be of the opposite sex from the
harasser . . . . [T]he crucial inquiry is whether the harasser
treats a member or members of one sex differently from
members of the other sex. The victim and the harasser may
be of the same sex where, for instance, the sexual harass-
ment is based on the victim's sex (not on the victim's sexual
preference) and the harasser does not treat employees of the
opposite sex the same way.
EEOC Compliance Manual (CCH) § 615.2(b)(3) (1987). Indeed, the
EEOC addresses the very circumstance before us, concluding, as we
do, that a claim under Title VII may lie:
Example 1 -- If a male supervisor of male and female
employees makes unwelcome sexual advances toward a
male employee because the employee is male but does not
make similar advances toward female employees, then the
male supervisor's conduct may constitute sexual harassment
since the disparate treatment is based on the male employ-
ee's sex.
Id. at § 615.2(b)(3).
Accordingly, we hold that a same-sex "hostile work environment"
sexual harassment claim may lie under Title VII where a homosexual
male (or female) employer discriminates against an employee of the
same sex or permits such discrimination against an employee by
homosexual employees of the same sex.
Here, Wrightson, a young male, has alleged that his male supervi-
sor and certain of his male co-workers are homosexual. He has further
9
alleged that, "because of his sex" and for the purpose of forcing him
to engage in homosexual sex, he was discriminated against by his
homosexual supervisor and homosexual co-workers. He has alleged
that he objected to and resisted these sexual overtures. He has alleged
that the harassment took place over a lengthy period of time, with the
full knowledge and acquiescence of Pizza Hut management. And he
has alleged only that young male employees of Pizza Hut were sub-
jected to the sexual overtures by the supervisor and co-workers. It
may ultimately be established that Pizza Hut's homosexual employees
harassed young males and females alike, that Wrightson was harassed
simply because he was heterosexual, or, as in McWilliams, that the
offensive conduct was the product solely of puerility or perversion.
But, as pled, Wrightson's Title VII claim is not subject to dismissal
under Federal Rule of Civil Procedure 12(b)(6) as a claim upon which
no relief could be granted regardless of the facts. He has presented a
cognizable claim not only that he was sexually harassed by his homo-
sexual supervisor and co-workers, but also that he would not have
been harassed but for the fact that he is a male.
B.
Pizza Hut contends that, even assuming a claim for same-sex
harassment lies under Title VII, the district court's dismissal must be
upheld because Wrightson's claim actually is not that he was harassed
because of his sex, but, rather, that he was harassed because of his
sexual orientation as a heterosexual.
The short answer to this contention is that, while it is true Title VII
does not afford a cause of action for discrimination based upon sexual
orientation, see Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d
69, 70 (8th Cir. 1989) ("Title VII does not prohibit discrimination
against homosexuals."), cert. denied, 110 S. Ct. 1158 (1990);
DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 329-
30 (9th Cir. 1979) ("Title VII's prohibition of`sex' discrimination
applies only to discrimination on the basis of gender and should not
be judicially extended to include sexual preference such as homosex-
uality."), Wrightson does not allege that he was discriminated against
because he is heterosexual. He specifically alleges in his complaint
that he was discriminated against "because of his sex, male," J.A. at
5. The unequivocal allegation that he was discriminated against "be-
10
cause of his sex," which, for purposes of Rule 12(b)(6) must be
accepted as true, is alone sufficient to withstand Pizza Hut's motion
to dismiss, and more than adequate when coupled with his allegations
that the harassers were homosexual and that other males (and no
females) were the targets of the harassment. Of course, even had
Wrightson alleged that he was discriminated against both because he
was heterosexual and because he was male, he would still state a
claim under Rule 12(b)(6). As the Court recognized in Price
Waterhouse, a Title VII cause of action lies even though the discrimi-
nation against the employee is not "solely" because of the employee's
sex, as long as the employee's sex was a cause of the discrimination.
See 490 U.S. at 241 (plurality opinion) ("[S]ince we know that the
words `because of' do not mean `solely because of,' we also know
that Title VII meant to condemn even those decisions based on a mix-
ture of legitimate and illegitimate considerations."); id. at 284 (Ken-
nedy, dissenting) ("No one contends . . . that sex must be the sole
cause of a decision before there is a Title VII violation.").
*****
In holding, as we do today, that a claim may lie under Title VII for
same-sex hostile work environment harassment, we recognize and
appreciate the reasons for the reticence of many of the federal courts
to recognize a cause of action under Title VII for same-sex discrimi-
nation. We, as they, have no doubt that such an expanded interpreta-
tion of Title VII will result in a significant increase in litigation under
this antidiscrimination provision. Ultimately, however, our role as
courts is limited to faithfully interpreting the statutes enacted by the
Congress and signed into law by the President. And where Congress
has unmistakably provided a cause of action, as it has through the
plain language of Title VII, we are without authority in the guise of
interpretation to deny that such exists, whatever the practical conse-
quences.
Therefore, because a claim may lie under Title VII for same-sex
hostile work environment sexual harassment where, as here, the indi-
vidual charged with the discrimination is homosexual, the judgment
of the district court is reversed.
REVERSED
11
MURNAGHAN, Circuit Judge, dissenting:
At the Federal Rule of Civil Procedure 12(b)(6) stage at which the
case now stands, no doubt exists that the homosexual harassers of
Wrightson, a heterosexual, could be found liable for breaking the law
and held responsible for damages. State causes of action for assault,
assault and battery, and intentional infliction of emotional distress
readily come to mind. Moreover, Pizza Hut, as an employer, allegedly
took grossly inadequate steps to halt the behavior of Howard and the
other homosexuals and should be held liable to Wrightson too, per-
haps on respondeat superior grounds, if not directly. As to the poten-
tial liability of Pizza Hut, Howard, and the other homosexual
harassers, I do not have any disagreement with the majority.
I can not, however, agree with the majority's transformation of
Title VII to provide a remedy for all distasteful workplace conduct.
As the court has stated previously, "[e]very example of offensive and
tasteless workplace conduct does not provide the basis of a cause of
action under Title VII." Hopkins v. Baltimore Gas and Electric Co.,
77 F.3d 745, 755 (4th Cir.), cert. denied, 65 U.S.L.W. 3240, 65
U.S.L.W. 3257 (U.S. Oct. 7, 1996) (No. 95-1961) (Judge Wilkinson
and Judge Hamilton concurring in part). To interpret Title VII's pro-
hibition of discrimination "because of" sex to allow for the federal
recognition of a same-sex harassment claim, i.e. heterosexual male on
one side, homosexual male on the other, whereby the heterosexual
alleges that he was discriminated against because of his sex, is to
stretch Title VII's "because of" sex language to include "unmanage-
ably broad protection of the sensibilities of workers simply `in matters
of sex.'" McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d
1191, 1196 (4th Cir.), cert. denied 65 U.S.L.W. 3240, 65 U.S.L.W.
3257 (U.S. Oct. 7, 1996) (No. 95-1983).
The majority does not dispute that when Title VII was enacted
Congress was concerned with discrimination against women by men
in the workplace. Title VII, however, does not only apply to women.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("The phrase
`terms, conditions, or privileges of employment' evinces a congressional intent
`to strike at the entire spectrum of disparate treatment of men and women'
in employment ..."); see also Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377
12
(8th Cir. 1996), citing McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 279-80 (1976) ("Congress did not limit Title VII protections
to only women or members of a minority group."). Rather, Title VII
represents Congress' concern with the creation of workplace equality
for women and men.
As the majority points out, sparse legislative history exists to guide
the courts as to the meaning of the term "sex" as used within the Title
VII context. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-64
(1986). The majority treats the absence of legislative history as a
license to "legislate" and impermissibly to rewrite Title VII to include
claims never intended, nor contemplated, by Congress. The majority's
approach ignores the context within which Congress enacted Title
VII. The absence of legislative history to guide the courts can be read
in either of two ways. Either, as the majority argues, Congress' failure
to exclude the possibility of same sex claims should be interpreted as
allowing for such claims. Or, Congress simply never fathomed that
Title VII would be used in the manner in which the majority today
holds, and hence, Congress, not the courts, should address, in the first
instance, whether Title VII's "sex" language should apply when a het-
erosexual male alleges that he was harassed by a homosexual male.
The instant case demonstrates the wisdom of the Constitution's three
branches of government, which leaves to the legislative branch, not
the judiciary, the task of making the law.
Therefore, in the absence of any legislative history addressing the
inquiry before the court, the O.E.D. dictionary definitions of sex
should be employed as guides. The dictionary defines "sex" as,
"[e]ither of the two divisions of organic beings distinguished as male
and female respectively, the males or the females . . . viewed collec-
tively," or of "sexual" as, "[o]f or pertaining to sex or the attribute of
being either male or female."
As "[s]exual" activity between two male, or female, heterosexuals
does not fall within Title VII's ambit, McWilliams, 72 F.3d at 1196,
neither logically may "sexual" activity between two male, or female,
homosexuals be actionable. See Williamson v. A.G. Edwards & Sons,
Inc., 876 F.2d 69 (8th Cir. 1989), cert. denied, 493 U.S. 1089 (1990);
DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th
Cir. 1979). Williamson and DeSantis render illogical a conclusion that
13
a heterosexual and a homosexual situation involving two males is one
falling under Title VII because of the sex of one of the protagonists.
As the Fifth Circuit stated in Garcia v. Elf Atochem North America,
28 F.3d 446, 451-52 (5th Cir. 1994):
harassment by a male supervisor against a male subordinate
does not state a claim under Title VII even though the
harassment has sexual overtones. Title VII addresses gender
discrimination.*
In the instant case, both parties are male, though Howard's group
is homosexual and Wrightson is heterosexual. To hold Title VII
applicable to heterosexual/homosexual but not to heterosexual/
heterosexual conduct produces a result more discriminatory than a
ruling following Garcia that same sex discrimination is not covered
by Title VII. The statute was intended to lessen, not to increase, dis-
crimination.
Another panel of the court in McWilliams held that same sex het-
erosexual on heterosexual harassment is not actionable. If
McWilliams were read with the single factual difference being proof
by the plaintiff that he was homosexual rather than heterosexual, I do
not envision that the disgusting remarks not found to be actionable
under Title VII would become so where the behavior on one side was
heterosexual and the other homosexual. As the court stated in
McWilliams:
There perhaps "ought to be a law against" such puerile and
repulsive workplace behavior even when it involves only
heterosexual workers of the same sex, in order to protect the
victims against its indignities and debilitations, but we con-
clude that Title VII is not that law.
McWilliams, 72 F.3d at 1196.
Wrightson, if he proves what he alleges, should recover for the
_________________________________________________________________
* See Goluszek v. Smith, 697 F. Supp. 1452, 1456 (N.D. Ill. 1988).
14
torts against him, but Title VII was not intended, nor does the statute
provide, a path for Wrightson to obtain the relief he seeks. Accord-
ingly, I dissent.
15