70 Wash. L. Rev. 1125 (1995)
Without Distinction: Recognizing Coverage of Same-Gender Sexual Harassment under Title VII

handle is hein.journals/washlr70 and id is 1135 raw text is: Copyright 0 1995 by Washington Law Review Association

WITHOUT DISTINCTION: RECOGNIZING COVERAGE
OF SAME-GENDER SEXUAL HARASSMENT UNDER
TITLE VII
Trish K. Murphy
Abstract: Federal court decisions conflict regarding the applicability of Title VII of the
Civil Rights Act of 1964 to sexual harassment cases where the alleged harasser and victim are
members of the same gender. This Comment examines the courts' treatment of same-gender
sexual harassment claims and argues that same-gender sexual harassment claims fall within
the purview of Title VII as impermissible discrimination. In reaching this position, this
Comment demonstrates that Title VII lacks gender-based limitations. It then argues that no
valid justification exists for distinguishing between same-gender sexual harassment and
sexual harassment involving members of different genders. Finally, this Comment suggests
that the inquiry should focus on the discriminatory and unwelcome nature of the conduct
alleged.
Elizabeth    suffered   from    sexual   harassment     at  her   place   of
employment. Her supervisor, Terry, repeatedly made sexually explicit
comments to Elizabeth, also propositioning and touching her in a
sexually offensive manner. Terry failed to treat male employees
similarly. Unable to tolerate such conditions, Elizabeth filed a Title VII
sexual harassment claim in federal court.'
If Terry is male, Elizabeth should have little difficulty stating a Title
VII sexual harassment cause of action. However, if Terry is female,
Elizabeth has then alleged a same-gender sexual harassment claim.
Depending on the jurisdiction, Elizabeth may face defeat on summary
judgment for failure to show a prima facie case of discrimination under
Title VII.
Prior to 1988, Terry's gender would have been irrelevant because
courts agreed that Title VII covers sexual harassment regardless of the
gender of the harasser and victim.2 However, in Goluszek v. Smith,3 a
federal district court departed from established precedent by refusing to
recognize a Title VII claim brought by a male plaintiff against his
employer, alleging sexual harassment by his male co-workers. In 1994,
other courts began to follow suit.4 Consequently, federal court decisions
1. 42 U.S.C.  2000e-2(a)(l) (1988). For a description of the provisions of Title VII, see infra
part I.A.
2. See, e.g., Joyner v. AAA Cooper Transp., 597 F. Supp. 537 (M.D. Ala. 1983), affd mem., 749
F.2d 732 (11th Cir. 1984); Wright v. Methodist Youth Serv., 511 F. Supp. 307 (N.D. Ill. 1981).
3. 697 F. Supp. 1452 (N.D. Il. 1988).
4. See, e.g., Garcia v. Elf Atochem N. Am., 28 F.3d 446 (5th Cir. 1994). See also infra note 82.

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