Phil Quick v. Donaldson Co. ( 1996 )

__________
95-3387
__________
Phil Quick, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Donaldson Company, Inc., *
*
Appellee. *
__________
Submitted: April 11, 1996
Filed: July 29, 1996
__________
Before BEAM and MURPHY, Circuit Judges, and NANGLE,* District Judge.
__________
MURPHY, Circuit Judge.
This case raises hostile environment sexual harassment claims based
on allegations that male co-workers physically and verbally harassed Phil
Quick for two years and that his employer, Donaldson Company, Inc.
(Donaldson), knew of the harassment but failed to respond with proper
remedial action, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and
the Iowa Civil Rights Act, Iowa Code Chapter 216. The district court
granted summary judgment to Donaldson, and Quick appeals from that
judgment. We reverse and remand.
*
The HONORABLE JOHN F. NANGLE, United States District
Judge for the Eastern District of Missouri, sitting by
designation.
I.
Phil Quick joined Donaldson in January 1991 as a welder and press
operator in its muffler production plant in Grinell, Iowa. About eighty-
five percent of the 279 employees at the plant are male. Quick claims he
was the workplace victim of "bagging," physical assault, and verbal
harassment, including taunting about being homosexual.1 He asserts that
he has an action under Title VII and state law for sex discrimination based
on sexual harassment in a hostile work environment.
Quick alleges that at least twelve different male co-workers bagged
him on some 100 occasions from January 1991 through December 1992.
"Bagging" is defined in the record in various ways, but typically involved
an action aimed at a man's groin area. According to Quick, bagging meant
the intentional grabbing and squeezing of another person's testicles.
Supervisor Roger Daniels explained that one man would walk past another and
make a feinting motion with his hand toward the other's groin. Daniels
stated bagging was widespread, that people in a variety of departments
participated in it, and that he himself had bagged others. Supervisor
Brett Musgrove, who first observed the practice at Donaldson in
approximately 1987, referred to it as a flicking gesture towards a man's
genitals to startle him. Plant manager Harold Schoen became aware in 1981
that bagging occurred at the plant, which he described as a hand motion
toward an employee's groin area. Schoen said he warned Quick when he was
hired in 1991 that it could happen to him.
Other employees testified in deposition that bagging involved hitting
another's testicles or upper thigh or snapping someone in the groin area.
The record does not contain any incidents of a female plant employee being
bagged, but it does reveal that in
1
There is no dispute that Quick is in fact heterosexual.
2
August 1993 a woman employee refused a male supervisor's request to bag
him.
The majority of the 100 bagging incidents involving Quick occurred
between January and September of 1991. During this time, Quick also saw
at least one other male employee being bagged every day. In August 1991,
Quick complained to supervisor Daniels about being bagged. No remedial
action was taken by Daniels or Donaldson. After Daniels observed employees
bag Quick on several occasions, Quick says Daniels told him that the next
time somebody bagged him "to turn around and bag the shit out of them."
The bagging incidents decreased after Quick was transferred to another
department on September 3, 1991. Between that time and December 1992,
Quick was bagged by a male co-worker on some six occasions.
Sometime during the fall of 1992, Schoen, the plant manager,
instructed the supervisors to stop the bagging actions and reviewed with
them the company's written sexual harassment policy. According to
supervisor Musgrove, each supervisor then reviewed that policy with
department employees and explained why the practice could not continue.
One employee, David Ashburn, also stated that Donaldson circulated a memo
around that time saying that bagging was harassment. After this, the
bagging apparently ended.
Quick also claims that male co-workers assaulted him on two
occasions. On August 23, 1991, one worker held Quick's arms, while another
grabbed and squeezed Quick's left testicle, producing swelling and
bruising. After Quick reported the assault to Daniels, Donaldson fired the
employee who had held Quick's arms, but took no action against the other
worker. The second assault occurred on September 13, 1991, when a co-
worker punched Quick in the neck during an argument over a broken machine.
Quick reported this incident to his supervisor at that time, Brett
Musgrove, who did not react.
3
Quick alleges in addition that he was verbally harassed and falsely
labeled a homosexual. Male employees placed tags on Quick's forklift and
belt loop which referred to a sexual act with a cucumber and stated "Pocket
Lizard Licker" and "Gay and Proud." In December 1992, a male co-worker
wrote "queer" on Quick's work identification card. Quick showed the
inscription to his new supervisor, Daryl Marks, who did nothing. Finally,
in June 1993, while Quick was at a local bar, a co-worker called him a
"fucking scab" for having withdrawn his union membership.
As a result of these actions, Quick obtained medical and
psychological treatment, which he asserts will continue in the future. He
currently experiences a bobbing sensation in his left testicle due to the
alleged assault and battery in August 1991.
In August 1993, Quick filed a charge of discrimination with the Iowa
Civil Rights Commission, as well as a state tort action against Donaldson,
Roger Daniels, and Brett Musgrove, alleging injuries due to the verbal and
physical assaults by his co-workers and supervisors. Quick amended his
complaint in January 1994, adding two counts of sexual discrimination by
Donaldson in violation of Title VII and the Iowa Civil Rights Act.2
Defendants removed the case to federal court in February 1994, and
discovery began. The parties consented to proceed before a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). Donaldson filed a motion
for summary judgment in May 1995 on all claims, as did Musgrove and
Daniels.
On August 4, 1995, the magistrate judge granted summary judgment for
Donaldson on Quick's federal and state sex
2
The Iowa Civil Rights Act provides that "[i]t shall be an
unfair or discriminatory practice for any . . . [p]erson to . . .
discriminate in employment . . . because of the . . . sex . . .
of such . . . employee . . . ." Iowa Code § 216.6.
4
discrimination claims and on a state law claim regarding a blood test it
had ordered for Quick. The remaining state law claims against Donaldson
and his two supervisors were dismissed without prejudice.3
The court reached a number of legal conclusions in the process of
ruling on Donaldson's motion on the sex discrimination claim. It held that
Title VII protects a male employee from discriminatory sexual harassment
only where he can show an anti-male or predominantly female environment
making males a disadvantaged or vulnerable group in the workplace and
treating female employees differently and more favorably. Applying this
test and ruling that only discrimination of a sexual nature is actionable
under Title VII, the court dismissed his claim under the federal statute.
It said there was no evidence that Donaldson had an anti-male or
predominantly female environment, that females were treated differently,
or that the bagging actions were sexual in nature. Although it
acknowledged that Quick had been subject to unwelcome harassment by his co-
workers, it found the cause was personal enmity or hooliganism, not his
sex. The court also dismissed the state civil rights claim on the basis
that Iowa courts would apply a similar test to the one used under Title
VII.
On appeal, Quick argues that the magistrate judge employed an
incorrect standard to judge his federal and state sex discrimination claims
and that summary judgment was inappropriate because of disputed material
facts. In addition, he contends that his state civil rights claim should
be permitted to proceed in the Iowa courts in any event.
3
After both parties filed separate motions to alter or amend
the judgment pursuant to Fed. R. Civ. P. 59(e), the magistrate
judge vacated the dismissal and remanded the claims to state
court.
5
II.
Quick argues that summary judgment was granted on his Title VII claim
based on an erroneous understanding of the law. Quick asserts that Title
VII prohibits workplace sex discrimination against any individual,
regardless of whether that person is part of a minority group. It was
therefore error to rule that male employees are protected under Title VII
only if they are members of a disadvantaged or vulnerable group, requiring
proof of an anti-male work environment. He maintains it was also wrong for
the district court to conclude that the harassment was not "of a genuine
sexual nature" and not based on his sex. Quick reasons that since bagging
at Donaldson was directed only at the area of male sexual organs, he would
not have been subjected to it but for being male. He points to the absence
of any evidence of female employees being bagged.
Donaldson apparently does not dispute that bagging was a pervasive
practice at the plant, that Quick was bagged numerous times, that
management was aware of it, and that it failed to take immediate and
appropriate remedial action. It agrees with the district court, however,
that harassment between heterosexual males is not actionable under Title
VII unless the plaintiff can show an anti-male work environment.4
Donaldson asserts that Quick failed to show such an environment because
other males viewed bagging as
4
There is no claim in this case that Title VII excludes all
claims of same gender sex discrimination. The Supreme Court has
not yet spoken on the issue, but several circuits have suggested
that Title VII covers such claims. See Rowinsky v. Bryan Indep.
Sch. Dist., 80 F.3d 1006, 1016 (5th Cir. 1996); Baskerville v.
Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995); Steiner
v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994),
cert. denied, 115 S. Ct. 733 (1995); Saulpaugh v. Monroe Community
Hosp., 4 F.3d 134, 148 (2d Cir. 1993) (Van Graafeiland, J.,
concurring); Bundy v. Jackson, 641 F.2d 934, 942 n.7 (D.C.Cir.
1981); but see McWilliams v. Fairfax County Bd. of Supervisors,
72 F.3d 1191, 1196 (4th Cir. 1996); Garcia v. Elf Atochem North
America, 28 F.3d 446, 448 (5th Cir. 1994).
6
mere horseplay. It notes that the only evidence that males were the sole
targets of bagging was Quick's deposition testimony that he was unaware of
any female employees being bagged. Donaldson argues Quick was harassed not
because he is a male, but rather because he was unpopular. It concludes
that the district court properly dismissed Quick's Title VII claim.
A party is entitled to judgment as a matter of law only if it can
show that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986). We review a
grant of summary judgment de novo. Kopp v. Samaritan Health System, Inc.,
13 F.3d 264, 269 (8th Cir. 1993). The basic inquiry is "whether the
evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of
law." Anderson, 477 U.S. at 251-52.
At the summary judgment stage, the court should not weigh the
evidence, make credibility determinations, or attempt to determine the
truth of the matter. Id. at 249. Rather, the court's function is to
determine whether a dispute about a material fact is genuine, that is,
whether a reasonable jury could return a verdict for the nonmoving party
based on the evidence. Id. at 248. The evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in Quick's
favor. Id. at 255. "If reasonable minds could differ as to the import of
the evidence," summary judgment is inappropriate. Id. at 250.
A.
Title VII prohibits "an employer" from discriminating "against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
Discrimination based on sex which has created a hostile
7
or abusive working environment violates Title VII. Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 66 (1986). In order to state a claim for sex
discrimination based on a hostile environment, a plaintiff must show that:
(1) [he] belongs to a protected group; (2) [he] was subject to
unwelcome sexual harassment; (3) the harassment was based on
sex; (4) the harassment affected a term, condition, or
privilege of employment; and (5) [the employer] knew or should
have known of the harassment and failed to take proper remedial
action.
Kopp, 13 F.3d at 269.
The first factor, membership in a protected group, is satisfied by
showing that the plaintiff employee is a man or a woman. See Meritor, 477
U.S. at 66-67. Congress did not limit Title VII protection to only women
or members of a minority group. See McDonald v. Santa Fe Trail Transp.
Co., 427 U.S. 273, 279-80 (1976). Rather, the broad rule of workplace
equality under Title VII strikes "at the entire spectrum of disparate
treatment of men and women in employment" in order to provide a workplace
free of "discriminatory intimidation, ridicule and insult." Harris v.
Forklift Systems, Inc., 114 S. Ct. 367, 370 (1993) (citation omitted).
Neither a man nor a woman is required to run a "gauntlet of sexual abuse
in return for the privilege of being allowed to work and make a living."
Meritor, 477 U.S. at 67 (citations omitted). The term "sex" as used in
Title VII has accordingly been interpreted to mean either "man" or "woman,"
and to bar workplace sexual harassment against women because they are women
and against men because they are men. See Rowinsky v. Bryan Indep. Sch.
Dist., 80 F.3d 1006, 1016 (5th Cir. 1996); Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1085 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985);
Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
8
The second element is that the employee was subject to "unwelcome
sexual harassment." Kopp, 13 F.3d at 269. The type of conduct that may
constitute sexual harassment includes sexual advances, requests for sexual
favors, and other verbal or physical conduct of a sexual nature. 29 C.F.R.
§ 1604.11(a). The harassment need not be explicitly sexual in nature,
though, nor have explicit sexual overtones. Stacks v. Southwestern Bell
Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994); Hall v. Gus Const.
Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988). Congress intended to
define discrimination in the broadest possible terms, so it did not
enumerate specific discriminatory practices nor "elucidate the parameter
of such nefarious activities." Hall, 842 F.2d at 1014 (citation omitted).
Since sexual harassment can occur in many forms, it may be evidenced by
acts of physical aggression or violence and incidents of verbal abuse.
Id.; Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 964-65
(8th Cir. 1993) (sexual harassment based on vulgar and offensive epithets
that were intensely degrading and insulting).
The "gravamen of any sexual harassment claim is that the alleged
sexual advances were 'unwelcome.'" Meritor, 477 U.S. at 68. Harassing
conduct is considered unwelcome if it was "uninvited and offensive."
Burns, 989 F.2d at 962. The question of whether particular conduct was
unwelcome will turn largely on credibility determinations by the trier of
fact. Meritor, 477 U.S. at 68. The proper inquiry is whether the
plaintiff indicated by his conduct that the alleged harassment was
unwelcome. Id.
The third required element is that the harassment complained of was
based upon sex. Although there is little legislative history as to what
discrimination "based on sex" means, the key inquiry is whether "members
of one sex are exposed to disadvantageous terms or conditions of employment
to which members of the other sex are not exposed." Harris, 114 S. Ct. at
372 (Ginsburg, J. concurring); Stacks, 27 F.3d at 1326. Evidence that
9
members of one sex were the primary targets of the harassment is sufficient
to show that the conduct was gender based for purposes of summary judgment.
Kopp, 13 F.3d at 269-70 (incidents of abuse involving primarily women
satisfied requirement of gender based conduct). The motive behind the
discrimination is not at issue because "[a]n employer could never have a
legitimate reason" for creating or permitting a hostile work environment.
Stacks, 27 F.3d at 1326.
The harassment must have also affected a term, condition, or
privilege of employment in order to be actionable. This factor means that
the workplace is permeated with "discriminatory intimidation, ridicule and
insult" that is "sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working environment."
Harris, 114 S. Ct. at 370 (citation omitted). The fact that a particular
group of employees may have found the conduct in question unobjectionable
is not decisive. Burns, 989 F.2d at 962. "So long as the environment
would reasonably be perceived, and is perceived, as hostile or abusive,"
Title VII is violated. Harris, 114 S. Ct. at 371.
Whether an environment is hostile or abusive cannot be determined by
a "mathematically precise test"; it entails consideration of the entire
record and all the circumstances. Id. There is no particular factor that
must be present, but conduct that is merely offensive is insufficient to
implicate Title VII. Id. at 370. Relevant considerations include
the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes
with an employee's work performance.
Id. at 370-71. A discriminatorily abusive work environment may exist where
the harassment caused economic injury, affected the
10
employee's psychological well-being, detracted from job performance,
discouraged an employee from remaining on the job, or kept the employee
from advancing in his or her career. Id.
The final element in a hostile environment claim is that the employer
failed properly to remedy the harassment it knew or should have known
about. Sexual harassment by a co-employee is a violation of Title VII if
the employer knew or should have known of the harassment and failed to take
immediate and appropriate action. Burns, 989 F.2d at 966.
B.
The district court departed from these legal standards in fashioning
the test it employed in ruling on Donaldson's summary judgment motion.
Protection under Title VII is not limited to only disadvantaged or
vulnerable groups. It extends to all employees and prohibits disparate
treatment of an individual, man or woman, based on that person's sex.
Harris, 114 S. Ct. at 370; Meritor, 477 U.S. at 67. The district court
therefore erred in requiring Quick to show evidence of an anti-male or
predominantly female work environment.
The district court also erred in determining that the challenged
conduct was not of a genuine sexual nature and therefore not sexual
harassment. The court concluded that neither bagging nor the physical
attacks expressed sexual interest nor involved sexual favors or comments.
A worker "need not be propositioned, touched offensively, or harassed by
sexual innuendo" in order to have been sexually harassed, however. Burns,
989 F.2d at 964. Intimidation and hostility may occur without explicit
sexual advances or acts of an explicitly sexual nature. Hall, 842 F.2d at
1014. Moreover, physical aggression, violence, or verbal abuse may amount
to sexual harassment. Id.; Burns, 989 F.2d at 964-65. The bagging was
aimed at Quick's sexual organs, his testicles were
11
squeezed so hard on one occasion that he almost passed out from the pain,
he was punched in the neck, and he was verbally taunted with names such as
"queer" and "pocket lizard licker." Whether or not these actions, when
viewed in the totality of the circumstances, constituted prohibited sexual
harassment remains a genuine issue of material fact for trial. See Burns,
989 F.2d at 965.
The district court also incorrectly concluded that the alleged
harassment was not gender based because it found the underlying motive was
personal enmity or hooliganism. A hostile work environment is not so
easily excused, however. Stacks, 27 F.3d at 1326. The fact that Quick
might have been unpopular could not justify conduct that otherwise violated
Title VII. Burns, 989 F.2d at 965 ("[t]here is no excuse in any work
environment" for subjecting a worker to such abuse "even if the harasser[s]
and plaintiff did not like each other"). In any event, fact-finding was
not appropriate on the summary judgment motion. See Anderson, 477 U.S. at
248-49.
The proper inquiry for determining whether discrimination was based
on sex is whether "members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other sex are not
exposed." Harris, 114 S. Ct. at 372 (Ginsburg, J. concurring). Although
Donaldson claims that female employees could theoretically be bagged, our
review is limited to the record developed below. Kopp, 13 F.3d at 269.
That record contains only incidents of bagging male employees. A female
employee was apparently once asked to bag a male supervisor, but she
refused. On this record, with all facts and inferences drawn in Quick's
favor, a fact-finder could reasonably conclude that the treatment of men
at Donaldson was worse than the treatment of women. Thus, Quick has raised
a genuine issue of material fact as to whether the alleged harassment was
gender based. See id. at 269-70.
12
Finally, the district court did not undertake the proper analysis in
determining whether Quick had established the remaining two elements of a
hostile environment claim. The court did not consider whether Donaldson
knew or should have known of the harassment and failed to take appropriate
remedial measures. See Kopp, 13 F.3d at 269. It also summarily concluded
that there was no evidence to raise a question of material fact "that the
unwelcome physical contacts discriminatorily affected Quick's compensation,
terms, conditions, or privileges of employment."
None of the suggested factors set forth in Harris were considered by
the district court to determine whether the alleged conduct was
"sufficiently severe or pervasive" to affect Quick's conditions of
employment. Harris, 114 S. Ct. at 370. These factors include the frequency
of the discriminatory conduct, its severity, whether it was physically
threatening or humiliating, whether it unreasonably interfered with Quick's
work performance, whether it caused economic injury, and whether it
affected his psychological well-being. Id. at 370-71. According to Quick,
the bagging was a daily practice in at least one department, and he
received physical and psychological treatment as a result of the
harassment. Although no single factor is required to state a claim for
sexual harassment, each may be relevant in deciding whether a hostile
environment existed at Donaldson. Id.
In conclusion, since the district court erred in its application of
Title VII law and since there were genuine issues of material fact, the
summary judgment in Donaldson's favor must be reversed. See Anderson, 477
U.S. at 251-52.
III.
Quick also contends that the district court improperly dismissed his
state civil rights claim for sex discrimination on the basis that Iowa
courts follow federal interpretation of Title
13
VII in application of the state law. Quick argues that he should be
allowed to proceed in state court with his state civil rights action
regardless of what happens with the appeal on his Title VII claim.
Donaldson responds that Quick failed to raise this issue in the district
court and that federal courts may decide his state discrimination law
claim.
Federal cases provide the basic framework for deciding sex
discrimination cases under the Iowa civil rights statute, Iowa State
Fairgrounds Security v. Iowa Civil Rights Comm., 322 N.W.2d 293, 296 (Iowa
1982), and federal courts may decide a state law claim based on a judicial
estimate of what the Iowa Supreme Court would do if confronted with the
same issue. Heeney v. Miner, 421 F.2d 434, 439 (8th Cir. 1970). Since
Quick's Title VII claim was improperly dismissed, summary judgment on his
state claim under the Iowa Civil Rights Act was also inappropriate.
The judgment is therefore reversed, and the case is remanded for
further proceedings consistent with this opinion.
NANGLE, District Judge, dissenting.
I respectfully dissent. I believe that the majority opinion sets a
precedent for improperly expanding Title VII to cover any form of
harassment experienced in the workplace. Although a cause of action may
lie under various state laws, I do not believe that a cause of action
exists under Title VII for the type of conduct that is alleged to have
occurred in this case.1
1
Donaldson noted at oral argument that it was not arguing
that same sex sexual harassment is never covered by Title VII.
In its brief, however, Donaldson contends that there is not a
cause of action for a heterosexual male plaintiff who claims to
be a victim of gender discrimination by heterosexual co-employees
of the same gender where plaintiff did not show an anti-male work
environment. Thus, I consider the issue of whether a cause of
action lies for such harassment to have been sufficiently raised
on appeal.
14
In McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191
(4th Cir. 1996), petition for cert. filed, 64 U.S.L.W. 3839 (U.S. June 10,
1996)(No. 95-1389), the Court held that harassment against a heterosexual
male by his heterosexual male co-workers did not state a hostile work-
environment sexual harassment claim under Title VII. McWilliams' co-
workers purportedly subjected him to both verbal taunts and physical
assaults of a sexual nature. Id. at 1193. The Court reasoned that such
harassment was not "because of the [claimant's] sex". Id. at 1195. "As
a purely semantic matter, we do not believe that in common understanding
the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged
here (nor comparable female-on-female conduct) is considered to be ``because
of the [target's] ``sex''." Id. at 1195-96. The Fourth Circuit offered
several alternative reasons that a heterosexual could be targeted for such
harassment by other heterosexuals including characteristics of the victim
(such as known prudery or shyness), and characteristics of the perpetrators
(such as perversion, insecurity or vulgarity). Id. at 1196. "But to
interpret Title VII to reach that conduct when only heterosexual males are
involved as harasser and victim would be to extend this vital statute's
protections beyond intentional discrimination ``because of' the offended
worker's ``sex' to unmanageably broad protection of the sensibilities of
workers simply ``in matters of sex.'" Id.
The obvious distinction between McWilliams and this case is that
there is no evidence that other heterosexual males were subject to the same
harassment in McWilliams while, in the instant case, many other
heterosexual males were exposed to "bagging" at Donaldson. Quick may be
more like McWilliams, however, than he appears to be at first blush. The
majority opinion notes that Quick claims that he was assaulted by male co-
workers on two occasions. On one occasion, workers purportedly grabbed
Quick's testicle producing swelling and bruising and, on another occasion,
Quick alleges that he was punched in the neck during an argument.
15
In addition, Quick asserts that he was verbally harassed, labeled a
homosexual, and called a "fucking scab" by a co-worker for having withdrawn
his union membership. Accordingly this case, upon closer examination,
appears to be similar to McWilliams in the sense that heterosexual males
singled out another unpopular heterosexual male for harassment. Although
this conduct is reprehensible, it does not state a hostile work environment
sexual harassment claim under Title VII.2
All of the Eighth Circuit cases relied on by the majority involve the
traditional scenario of a male supervisor or male co-workers harassing
female employees. See Stacks v. Southwestern Bell Yellow Pages, 27 F.3d
1316 (8th Cir. 1994) (male supervisor harassing female subordinate); Kopp
v. Samaritan Health System, Inc., 13 F.3d 264 (8th Cir. 1993) (male doctor
harassing female technician); Burns v. McGregor Electronic Industries, Inc.
989 F.2d 959 (8th Cir. 1993) (female employee harassed by male employer);
Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (male co-
workers harassing female employees). It is important, however, that we
distinguish between these type of cases and the case presently before the
Court. The "because of sex" element is implied in these cases, not
because there is a predominantly male or anti-female environment, but
because "sexual behavior directed at a woman [by a man] raises the
inference that the harassment is based on her sex". Burns v. McGregor
Electronic Industries, Inc., 955 F.2d 559, 564 (8th Cir. 1992). Such an
inference is not raised when heterosexuals of one gender harass other
heterosexuals of the same gender. This is because in the traditional
situation,
[t]he causal link between the supervisor's conduct and
2
Like the McWilliams court, I do not address the viability
of heterosexual-on-heterosexual claims involving discrimination
through adverse employment decisions nor do I address the
viability of any same-sex discrimination claim where victim,
oppressor, or both, are homosexual or bisexual. McWilliams, 72
F.3d at 1195 n.4.
16
the victim's harassment is the victim's gender. . . . In a
same-gender sexual harassment case, however, conduct of a
sexual or gender-oriented nature can not be presumed to be
discriminatory. . . . When the alleged offender and the alleged
victim share the same gender, similar sexually suggestive words
and acts can take on a whole other meaning.
Easton v. Crossland Mortgage Corp., 905 F. Supp. 1368, 1382-83 (C.D.Cal.
1995). In this case, the "bagging" incidents would surely be viewed in a
different light if male employees were making similar gestures and touches
toward female employees. When this conduct occurs between heterosexual
males one is struck by the vulgarity of these actions. If this conduct
were to occur to females by males, however, the impression is entirely
different and the inference of sex discrimination is raised.
The fundamental difference between this dissent and the majority
seems to be who should decide whether a cause of action lies for such
conduct - the court or the jury. I contend that the question is purely a
question of law for the court because it is, at its essence, a question of
statutory interpretation.3 See United States v. Moore, 38 F.3d 977, 979
(8th Cir. 1994) ("[T]he task of statutory interpretation is one best placed
in the hands of the trial judge"). The majority seems content to let the
jury decide based upon an application of factors used in traditional
3
There is not much legislative history to aid statutory
interpretation in this instance. Representative Howard Smith, a
foe of civil rights legislation, added "sex" as a prohibited
basis of discrimination to Title VII at the last minute in an
apparent attempt to defeat the bill. Obviously, the effort
failed and there is little legislative history to guide the
courts in interpreting discrimination based on sex. Meritor
Savings Bank v. Vinson, 477 U.S. 57, 63-64 (1986) (citing 110
Cong. Rec. 2577-84 (1964)); Ulane v. Eastern Airlines, 742 F.2d
1081, 1085 (7th Cir. 1984); Charles R. Calleros, The Meaning of
"Sex": Homosexual and Bisexual Harassment under Title VII, 20
Vermont L.Rev. 55 (1995). But cf. Sommers v. Budget Marketing,
667 F.2d 748, 750 (8th Cir. 1982) (it is "generally recognized
that the major thrust of the "sex" amendment was towards
providing equal opportunities for women").
17
hostile work-environment sexual harassment claims. I cannot agree with
this approach. Accordingly, I dissent and would affirm the judgment of the
district court for the reasons stated herein.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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